State v. Neff

• Decision Date: 06 May 1950
• Docket Number: No. 37797,37797
• Citation: 218 P.2d 248,169 Kan. 116
• Parties: STATE v. NEFF.
• Court: Kansas Supreme Court

Page 248

218 P.2d 248

169 Kan. 116

STATE v. NEFF.

No. 37797.

Supreme Court of Kansas.

May 6, 1950.

Rehearing Denied June 16, 1950.

Syllabus by the Court

1. An information which charges a defendant with having murdered two persons at different times and by different means is not duplicitous so long as each count charges only one offense.

2. On a motion to quash an information, or on a motion to require the state to elect between offenses charged, on the ground two unrelated offenses are improperly joined, a trial court is not obliged to rule thereon immediately but may wait until the state's testimony discloses whether the offenses are sufficiently related to permit their joinder in separate counts. The rule applies although from an examination of the counts on their face it appears unlikely a joinder can be sustained.

3. Notwithstanding some general rules are recognized as guides in determining the question of proper joinder of offenses it is difficult, if not impossible, to lay down a comprehensive rule which will adequately cover every possible contingency. This court is committed to the modern and safer rule of determining the question of the peculiar facts of each case as it arises.

4. Where a state's case in chief contains evidence from which it reasonably may be inferred the offenses charged in two counts are part of a comprehensive plan, inspired by the same purpose, the product of the same motive, and that defendant's objective could be fully realized only by the commission of both offenses, a motion to require the state to elect on which count it will rely for conviction is properly overruled.

5. Where proof of the commission of related and similar offenses consists in one written voluntary confession, on which the state must rely for conviction of each offense, the state is not required to file separate informations on each offense and thereby defeat a prosecution of the second offense by virtue of G.S. 1935, 62-1449.

6. Ordinarily a witness is not obliged to testify concerning facts which might incriminate him. In order to make testimony of such witness, given at a previous trial of the same case, admissible in a later trial, the testimony must be competent for the particular purpose for which it is sought to be adduced.

7. Where the state relies on direct rather than on circumstantial evidence for conviction, evidence offered by defendant to indicate a possible motive of someone other than the defendant to commit the crime is incompetent absent some other evidence to connect such third party with the crime.

8. It is always desirable that there should be an orderly presentation of proof. Rules pertaining thereto, however, are directory and not mandatory. An alteration in the prescribed customary order of proof rests in the sound judicial discretion of the trial court and the court's ruling will not be disturbed on appeal unless its exercise of discretion is abused.

9. An instruction given in a previous trial of the same case in which a mistrial resulted does not become the law of the case for a later trial without an appeal and determination of the question, or questions, involved in the instruction.

10. The legislative direction to this court in G.S. 1935, 62-1718 is not permissive but mandatory. Under its express terms this court must give judgment without regard to technical errors which do not affect the substantial rights of the parties and this court is compelled to determine all questions arising within the purview of the legislative mandate.

11. In determining whether an additional instruction given during the jury's deliberation was coercive this court will examine the instruction and other pertinent instructions, consider all circumstances existing at the time it was given, together with the conduct of the jury thereafter, and determine the likely effect of the instruction in the light of the entire record.

12. A belated instruction examined, and considered in the manner indicated in the preceding paragraph, and held: (a) The giving of the instruction is not approved; and (b) in view of the circumstances narrated in the opinion we are convinced it did not adversely affect the substantial rights of the defendant.

13. A confession freely and voluntarily made is a statement against interest, is evidence of the most satisfactory character and deserving of the highest credit.

14. An instruction, set forth in the opinion, on the subject of a free and voluntary confession which defendant admitted having made but the truth of which he repudiated on the witness stand, is examined, and held: (a) It was not erroneous on any ground alleged; and (b) was not inadequate for any reason claimed.

15. Whenever it is made to appear to the district court a jury list has not been made from the assessment rolls of the previous year 'or that from any other cause' the lists furnished by the designated officers to the county clerk, or the names taken therefrom and deposited in the jury box, have been so returned as to vitiate the panel drawn therefrom, it is 'the duty of the judge of such court' to forthwith select a sufficient number of jurors for the term, as provided by G.S. 1935, 43-128.

16. G.S. 1935, 43-128 does not direct whom the judge shall select as jurors or what method he shall employ in making the selection.

17. Where a trial judge, in order to forthwith select the jurors, as required by G.S. 1935, 43-128, directs certain county officers to aid him in the preparation of a jury list and the list made receives the independent approval of the trial judge, such jury list will not be declared invalid on the alleged ground the judge unlawfully delegated his statutory authority to others. Following Walker v. United States, 8 Cir., 93 F.2d 383.

18. G.S. 1935, 62-1448, which authorizes the district court to keep the jurors together, is designed primarily to protect the judicial process from outside interference. Where facilities to keep jurors together, should occasion arise to make that desirable, are, in the opinion of the court, wholly inadequate if the jury consists of both men and women and there is an entirely insufficient showing of adequate facilities, such facts will be considered by this court in determining whether the trial court discriminated against the defendant in the exclusion of women jurors.

19. Neither our state nor the federal constitution guarantees the right to trial by a jury consisting of both men and women. Constitutional guarantees and limited to trial by an impartial jury.

20. Federal rules pertaining to women jurors in federal courts are not designed to, and do not, control jury trials in state courts. Fay v. New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043.

21. The general rule is a defendant cannot object to the exclusion of persons from the jury who are not members of his own class and, unless prejudice results to him by reason of the exclusion of such persons, a conviction fairly reached will not be disturbed on appeal.

22. The record examined, considered and held: (a) An intimation of bad faith on the part of officials who aided the district judge in the preparation of a new jury list examined and found to be wholly without factual support; (b) there was no discrimination against the defendant in the exclusion of women jurors and there is no indication prejudice resulted to him from their absence on the jury; and (c) there is no evidence or the remotest indication defendant was not tried by an impartial jury and we find he had a fair trial by such a jury.

H. W. Goodwin, Wichita, argued the cause, and John A. Potucek, Wellington, on the briefs for appellant.

Ford Harbaugh, County Attorney, Wellington, argued the cause, and Harold R. Fatzer, Attorney General, and C. Harold Hughes, Assistant Attorney General, on the briefs for appellee.

WEDELL, Justice.

This is an appeal from a conviction of murder in the first degree.

The appeal is from a judgment rendered on the third trial of the same case, the first two prosecutions having resulted in mistrials. The appellant, George Neff, was charged in two separate counts of the same information with the murder of his wife, Jessie Neff, on November 17, 1947, by means of poisoning, and with the murder of Kenneth Wynn by means of a shot from a rifle approximately one month later, December 16, 1947. This trial resulted in a verdict of guilty on the count charging him with the murder of Wynn and a hung jury on the other count.

Kenneth Wynn was appellant's brother-in-law, the appellant and Wynn having married sisters. After two previous oral confessions the appellant on January 10, 1948, signed a single written confession in which he admitted having committed both murders. In this third trial appellant admitted he voluntarily signed the confession but in his oral testimony on the witness stand attempted to repudiate the truth of his confession and various statements therein contained.

Appellant lists twenty-five specifications of error and argues fourteen under separate headings. The latter will be treated and the others regarded as abandoned.

Appellant's first contention is the information should have been quashed in response to his motion which alleged duplicity and the joinder of unrelated offenses not arising out of the same transaction. His next complaint is the court, after the state rested its case in chief, should have sustained his motion to require the state to elect on which count it would rely for conviction. The latter motion was on the ground the state's evidence showed the alleged offenses were unrelated and that a trial on both counts would result in appellant's prejudice.

Appellant argues the two motions together. Before considering the question whether the offenses were related we pause to state that part of appellant's motion to quash the information on the ground it was duplicitous was not good as no two offenses were charged in any single count of the information. Even if from an...