State v. Nordmark

Decision Date08 April 1911
Docket Number17,267
Citation114 P. 1068,84 Kan. 628
PartiesTHE STATE OF KANSAS, Appellee, v. CHARLES NORDMARK, Appellant
CourtKansas Supreme Court

Decided January, 1911.

Appeal from Republic district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. EVIDENCE--Expert Testimony--Firearms. A person who has acquired special knowledge and skill as to the use of firearms, and by experience, observation and practice has learned the effect of shots and bullets cutting through limbs or shrubs, is competent to testify whether a certain shrub or limb was cut by a bullet, and also whether certain empty shot shells had been loaded with large or small shot.

2. HOMICIDE--Circumstantial Evidence. The nature location and physical characteristics of the scene of the homicide, and the conditions existing in the immediate vicinity, may be shown in evidence on the trial of the one charged with the crime as a part of the history of the transaction; and in the present case it is held, that the court was warranted in receiving in evidence empty shells found near the place of the homicide, a limb of a tree which stood near the place and which appeared to have been cut by shot fired from a gun, and photographs of the scene of the homicide.

3. CRIMINAL LAW--Evidence Proving Another Offense as Well as the One Charged. Evidence which fairly tends to prove the felonious killing of the deceased should not be excluded because it may tend to prove that others were killed by the defendant at the same time and by the same means.

4. NEW TRIAL--Statement by the Court of Reasons for Denying Motion. In denying a motion for a new trial the trial court is not required, on the request of the defendant, definitely to state the facts and circumstances brought out in the testimony which, in his opinion, support the different elements of the offense of which the defendant was convicted.

5. NEW TRIAL--Newly Discovered Evidence. A new trial should not be granted because of newly discovered evidence unless it is material and such as leads the court to think that it would probably produce a different verdict.

6. HOMICIDE--Circumstantial Evidence--Corpus Delicti--Guilty Agency. In a prosecution for murder the corpus delicti and the guilty agency of the defendant may be proved by circumstantial evidence, and upon an examination of all the evidence in this case it is held to be sufficient to support the verdict finding the defendant guilty.

David Ritchie, for the appellant.

John S. Dawson, attorney-general, and W. D. Vance, county attorney, for the appellee.

OPINION

JOHNSTON, C. J.:

Charles Nordmark was charged with having murdered Alexander Lindahl on March 26, 1910, and upon a trial he was convicted of murder in the second degree. On this appeal the principal complaint is that the verdict of the jury is not sustained by the evidence.

There was no eyewitness to the killing, and in this, as in most cases where conviction rests on circumstantial evidence, there is a claim that the guilt of appellant is not shown with the certainty which is necessary to a conviction. It was shown that Nordmark and Lindahl lived on adjoining farms and that between them there had been a bitter hatred for some time, arising mostly from the fact that Nordmark had charged Lindahl with stealing his property, and it had been demonstrated that Lindahl had stolen many articles belonging to Nordmark and had committed numerous depredations on his property. Frequently Nordmark had expressed the opinion that Lindahl should be killed and made threats of shooting him, and often he had expressed the opinion that he could not get legal redress for the wrongs inflicted on him by Lindahl, but that he would "get him," and on the night before the killing a threat of this kind was made. It appears that on the afternoon of March 26, 1910, Lindahl and his two children went down to his boat landing on the Republican river, which was near the corner of the Nordmark farm. Nordmark was at work near the landing about the time the killing was done. About four o'clock that afternoon two witnesses, who were within a mile of the landing, heard three shots fired in the locality of the landing, and one of them saw smoke float out over the river, at that place, as though emanating from the shooting. Three persons, Lindahl and his two children, were shot and killed. About five o'clock the following day Percy Shivers and John Weber, who were coming up the river, discovered Lindahl's motor boat at a point about forty rods below the boat landing. It was at the bank, in still water, and on the lower side of a sand bar which extended out into the river about forty or fifty feet, and over which it was impossible for the boat to have drifted. In it were the bodies of the two children, and with them was Lindahl's dog, which was alive. The following morning the body of Lindahl was found, submerged in water about three feet deep, on the up-stream side of a willow tree which lay in the river near the west bank. The point where the body was found was seventy yards below the landing, and the partially submerged tree was the first obstruction that would be met by a floating object below the landing. Lindahl's cap was also found lodged on a twig of the submerged tree, almost directly over the place where his body was found. Lindahl had been killed by buckshot, and the children also had been killed by the same kind of shot. The course of the shots was in a downward direction and the theory of the state is that they had been fired from the same position. A small dogwood tree, which grew on the bank of the river, between the Nordmark field and the landing, appeared to have been cut by buckshot. Shot of the same kind were found imbedded in the boat. Three empty shot shells were found near the landing, such as would fit a twelve-gauge shotgun, and a gun of this kind, loaded with buckshot, was found in the Nordmark house, and an examination of it showed that one of the barrels had been recently used; but it was also shown that Lindahl and others had guns of this kind, and shells loaded with buckshot were found in the houses of both Lindahl and Nordmark. Lindahl and his two children started for the river on the afternoon of the alleged killing to look after his traps, and were seen by his wife on their way to the river. The little girl was carrying an oil can, which was afterward found near the landing. In the boat were found trap stakes, recently cut, and small trees from which the stakes had evidently been made had been cut near the landing.

The inference drawn by the state from the facts, not all of which have been stated, is that just as Lindahl was embarking or landing the boat Nordmark, who it is conceded was working in an adjoining field and who on the night before had threatened to kill Lindahl, fired the shots which killed the Lindahls; that Lindahl's body fell into the water and floated to the spot where it was found; that the bodies of the children remained in the boat, which was carried down by the current, and when the boat reached the sand bar it was caused to swing around into the quiet water, where it lodged. Nordmark conceded that there was animosity between himself and Lindahl and did not deny the threats mentioned, but he did deny that he had anything to do with the killing of the Lindahls. His theory was that Lindahl might have quarreled with other parties who were boating or fishing on the river and had been killed by them, and that they placed the bodies near the Nordmark place so as to direct suspicion toward him.

There is a complaint about the admission of testimony by witness Dunlap to the effect that the shrubs or underbrush near the landing had been severed by buckshot, and also that the empty shells found near the landing had been loaded with buckshot. If a witness has acquired peculiar knowledge or skill, by experience, observation or practice on a subject with which the mass of mankind is not supposed...

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12 cases
  • State v. Doyle
    • United States
    • Kansas Supreme Court
    • June 8, 1968
    ...§ 66, p. 143.) Our own cases are to the same effect. (State v. Winner, 17 Kan. 298; State v. Davis, 48 Kan. 1, 28 P. 1092; State v. Nordmark, 84 Kan. 628, 114 P. 1068; State v. King, 111 Kan. 140, 206 P. 883, 22 A.L.R. The corpus delicti may be proved by the direct testimony of persons who ......
  • Virginia Sur. Co. v. Schlegel
    • United States
    • Kansas Supreme Court
    • December 9, 1967
    ...or practice on a subject with which the mass of mankind is not supposed to be acquainted, he may give his opinion on it. State v. Nordmark, 84 Kan. 628, 631, 114 P. 1068; State v. Parsons, 140 Kan. 157, 160, 33 P.2d 1096. * * *' (152 Kan. p. 555, 106 P.2d p. The weight to be given the testi......
  • State v. Hale
    • United States
    • Kansas Supreme Court
    • January 23, 1971
    ...pills could not, in and of themselves, be said to constitute new evidence likely to change the result of the trial. In State v. Nordmark, 84 Kan. 628, 114 P. 1068, this court '* * * Unless the evidence is so material that it would be likely to produce a different result the court is not war......
  • State v. Myers
    • United States
    • Kansas Supreme Court
    • January 24, 1942
    ... ... played a part in this affair under consideration. Physical ... objects which constitute a portion of a transaction or play a ... part therein are admissible in evidence as exhibits ... State v. Moore, 80 Kan. 232, 102 P. 475; State ... v. Nordmark, 84 Kan. 628, 114 P. 1068 ... The ... defendant submitted two requested instructions to the trial ... court as to the elements of the crime with which he was ... charged. The last matter argued in this appeal is that these ... two requested instructions should have been given in ... ...
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