State v. Netherton

• Decision Date: 10 October 1931
• Docket Number: 29759.
• Parties: STATE v. NETHERTON. [*]
• Court: Kansas Supreme Court

3 P.2d 495

133 Kan. 685

STATE v. NETHERTON. ^[*]

No. 29759.

Supreme Court of Kansas

October 10, 1931

Syllabus by the Court.

Evidence held sufficient to sustain conviction for first degree murder.

The evidence relating to murder examined, considered, and held sufficient to sustain a verdict of guilty of murder in the first degree.

Testimony of trailing of defendant with bloodhounds is inadmissible unless it is shown that bloodhounds were laid on trail at point where circumstances tend clearly to show that guilty party had been; admissions and statements of accused may be used to sustain testimony of trailing by bloodhounds.

Before the testimony of the trailing of bloodhounds of one charged with crime may be used in evidence, it must be shown that the bloodhounds were laid on a trail at a point where the circumstances tend clearly to show that the guilty party had been, or on tracks which the circumstances indicate to have been made by him. This fact may be established by the admissions and statements of the accused.

The rulings of the court on the objection to certain testimony and the conduct of counsel and the trial court examined considered, and held not reversible error.

Additional Syllabus by Editorial Staff.

Rejection of expert testimony offered to show distance which shots fired in basement from .25 caliber automatic pictol could be heard held not prejudicial error in murder prosecution.

Court properly permitted witness, practicing physician and long coroner, to estimate time deceased had been dead.

Defendant waives error in admission of testimony by failing to object and subsequently offering evidence in refutation.

Counsel's question, asked on argument, as to who could have killed deceased except defendant, and statement that there was no evidence of motive for another to commit crime, held not improper.

Appeal from District Court, Douglas County; Hugh Means, Judge.

S. O Netherton was convicted of murder, and he appeals.

C. W Gorsuch, Chauncey B. Little, and Judson S. West, all of Olathe, Frank M. Sheridan and Bernard L. Sheridan, both of Paola, and L. H. Menger, of Lawrence, for appellant.

Roland Boynton, Atty. Gen., and Clayton Brenner, Co. Atty., and S. T. Seaton, both of Olathe, for the State.

SLOAN J.

The defendant was convicted of the murder of his wife, Edith Netherton, and from the judgment of conviction he appeals.

This is the second appearance this case has made in this court. State v. Netherton, 128 Kan. 564, 279 P. 19. The principal contention of the appellant is that the evidence is insufficient to sustain the verdict, and for this reason it is necessary for us to examine the evidence to determine whether there is substantial evidence supporting the verdict. The evidence was entirely circumstantial. The appellant had lived on a small farm near Olathe for about twenty years. Prior to locating on this farm he had received a collegiate and medical education, had practiced his profession in three states, and had been a ship surgeon for several years on a vessel service between the Asiatic ports and those of our Western coast. When he came to Olathe, he had about $8,000 in money and securities with which he purchased a small farm, abandoned the practice of medicine, and engaged in horticulture. Some time after his location on the farm he met and courted Edith Strahl, who was the daughter of a widow with considerable property, living near the appellant's farm. They were married about ten years prior to the tragedy under consideration. She was at that time twenty-one years of age and he was forty-nine. She was a graduate of the high school of Olathe, had attended the Kansas university, and was for a time employed in a bank at Olathe. The evidence indicates that she had a distaste for society and fine clothes, but was interested in horticulture. After their marriage, they lived on appellant's farm, and in about two years a daughter, Dorothy, was born, and at the time of the death of Mrs. Netherton she was about to become the mother of another child.

The mother of Edith Netherton died in 1926, leaving as her only heir her daughter, whose heritage consisted of a farm of 160 acres and about $80,000 in bonds and other securities. The appellant and his wife were frugal and industrious, and devoted their time and attention to their farms, and at the time of the tragedy the appellant had bonds in the amount of $34,500, the deceased bonds in the amount of $44,000, and $20,000 in bonds had been set apart for the use and benefit of the daughter, Dorothy.

The evidence of the neighbors is to the effect that the relation between the appellant and his wife was always courteous and attentive, and they were apparently devoted to each other. Hiram Morgan had worked for Mrs. Strahl several years before her death, and after her death he was employed by the appellant and was a member of the family.

On the morning of February 24, 1928, the family arose as usual, ate breakfast, and did the chores about the place. The appellant took Hiram Morgan to the farm belonging to Mrs. Netherton for the purpose of looking after the live stock. He returned to the home about 8:30, just as Dorothy was getting ready to start for school. The school was about a mile from the home, and she took her lunch with her. The appellant went to town, transacting business at the bank and other places, and returned home about 11:30. He called the sheriff, telling him that the house had been robbed. In about five minutes he again called the sheriff, and told him he had found his wife dead in the basement. The sheriff went immediately to the house. The appellant was in the yard, and accompanied him to the basement, where he found the body of Edith Netherton lying on her stomach, her head resting on the right side of the face. There were two gunshot wounds, one in the back of the head and one in the left temple from a .25 caliber automatic revolver. A stool stood near the feet of the body and at a little bench with some berry boxes on it--one berry box partly finished. Shortly after the sheriff arrived, John Wells came, and within a few minutes the coroner, Dr. Moberly, arrived. Dr. Jones of Olathe, hearing of the tragedy, called the appellant, and asked if he could be of any assistance. He came to the residence, but made no examination of the body at that time--later he conducted an autopsy. The appellant was questioned by the sheriff and Mr. Wells, and, according to their evidence, he told them that he had not been upstairs, but, on returning to the house at about 11:30, he observed that the house had been ransacked and the contents of the sideboard drawers dumped out upon the floor. Bloodhounds were sent for, arriving at about 1 o'clock. The dogs were taken to the upstairs and given a scent from one of the dresser drawers that was partly open. From there they went into various rooms upstairs, into the hall, smelled around a wardrobe, then down the stairs into the room where the sideboard drawers had been dumped out on the floor, out of the front door on to the porch, and stopped by the appellant. They were then taken into the basement, and followed a scent or trail up the basement stairs to the landing, out through the basement door, around the house west and north, then back to the east or front side of the house, again stopping at the appellant.

After the funeral, the appellant was taken to Kansas City by the sheriff and county attorney, where he was questioned for some time and made a written statement in which he declared his innocence, and gave his version of what transpired in the home on the morning of the tragedy, and his theory of the crime. He said that he returned home from taking Morgan to the farm about 8:30, just as his little daughter was preparing to start for school. He was in the house for a short time, perhaps about fifteen minutes, and then went to the barn to do some chores. His wife came to the barn and told him that a tramp had been at the door asking for something to eat, and that she refused his request. He asked his wife what time it was, and she told him it was 10:30 which was time for him to make his business trip to town. He backed the car out of the garage and drove to the business part of town, transacting business at different places, including the bank, and on his return he stopped at the mail box at the front gate for the mail. He drove the car into the garage and went to the pasture and drove some cattle into the barn lot. He entered the east door of the house, and the first sight that met his eyes was the contents of the sideboard...