State v. Owen

• Decision Date: 25 January 1947
• Docket Number: 36444.
• Citation: State v. Owen, 162 Kan. 255, 176 P.2d 564 (Kan. 1947)
• Parties: STATE v. OWEN.
• Court: Kansas Supreme Court

176 P.2d 564

162 Kan. 255

STATE v. OWEN.

No. 36444.

Supreme Court of Kansas

January 25, 1947

Appeal from District Court, Sedgwick County, Division No. 2; Robert L. Nesmith, Judge.

Albert L. Owen was convicted of murder in the second degree, and he appeals.

Reversed and remanded, with directions.

THIELE WEDELL, and BURCH, JJ., dissenting.

Syllabus by the Court.

Examining the record in a prosecution for murder in which the homicide was alleged and admitted to have been committed with a shotgun, but in which defendant relied upon self-defense, it is held: (1) There was admittedly sufficient competent evidence to submit that issue to the jury; (2) additional evidence admitted in the state's case in chief of defendant's conviction of the murder of another person with a revolver twenty-eight years previously had no probative value with reference to any element of crime for which appellant was on trial. Its admission over objection was prejudicial and constituted an abuse of sound judicial discretion; (3) the fact that counsel for defendant, in their voir dire examination of the jurors, asked each of the jurors whether evidence of the former conviction would prejudice him against the defendant and each of them answered in the negative, did not prevent counsel from objecting to the evidence when offered by the state or relieve the court of ruling properly thereon; (4) the instruction with respect to the limited purpose for which evidence of the former offense could be considered, if not regarded as sufficiently inaccurate to require a new trial, did not cure the erroneous admission of the evidence.

George L. Adams, of Wichita (Clarence R. Sowers, of Wichita, on the brief), for appellant.

Pat Warnick, Co. Atty., of Wichita (A. B. Mitchell, Atty. Gen and L. M. Kagey, Lee R. Meador, Fred M. Field, John H Gerety, and B. Mack Bryant, Deputy Co. Attys., all of Wichita, on the brief), for appellee.

WEDELL Justice.

This is an appeal by the defendant from a conviction of murder in the second degree.

The charge was that appellant committed the murder of one Roy Meredith Cole by means of a firearm, to wit, a shotgun. This is the second appearance of the case in this court. State v. Owen, 161 Kan. 361, 168 P.2d 917. Following our opinion on the first appeal the appellant, upon request, was given leave to file an amended abstract in order to show he had filed a motion for a new trial. Having made that showing here this court allowed a rehearing. In their former brief and oral argument before this court counsel for appellant claimed certain errors including the admission of testimony and misconduct of the county attorney on cross-examination of appellant and in his argument to the jury. The motion for a new trial discloses alleged misconduct of the county attorney was not included as a ground for a new trial.

Counsel for appellant who argued the case here frankly conceded the only contention he was now making was that the trial court erroneously admitted in the state's case in chief, over his objection, evidence of appellant's conviction of the murder of a woman with a revolver twenty-eight years previously. Appellant's counsel objected to the testimony when offered by the state in its case in chief on the grounds (1) it was incompetent, irrelevant and immaterial and highly prejudicial because the offenses were not similar; and (2) the testimony was incompetent in the state's case in chief in any event and could be introduced only on cross-examination of appellant to impeach his credibility in the event appellant testified in his own defense. In the brief it is, however, also asserted the instruction to the jury touching the purpose of which evidence of the former offense could be considered was erroneous for the reason it improperly included the word 'motive.'

On the other hand counsel for appellee, in substance, contend (1) the jury was fully informed concerning the previous offense by counsel for appellant on the voir dire examination; the jurors were individually and collectively interrogated relative to whether they would permit the previous conviction to prejudice them in this case; they uniformly stated they would not and appellant did not exhaust his jury challenges; (2) aside from the foregoing facts the evidence was competent and properly admitted in the state's case in chief for the limited purpose stated in the court's instruction; (3) appellant took the witness stand and evidence of the former conviction and the manner in which that offense was committed was admitted on his cross-examination without objection; (4) appellant is not entitled to a new trial on the ground the jury was prejudiced; and (5) the instruction was in conformity with the established law of this state.

Appellant did not deny that he shot Cole with a twelve gauge single barrel shotgun as charged but contended he did so in self-defense. Cole died immediately with the result that his version of the shooting is lacking. Appellant was the only eyewitness to the shooting. There was, however, evidence of other witnesses that Cole had threatened to take appellant's life. Appellant's own testimony, if believed, was ample to establish the claim he shot Cole in self-defense. On the other hand the sheriff of Sedgwick county, appellee's witness, testified appellant told him, after the shooting of Cole, that he (appellant) had decided two weeks previously to put an end to all this and had borrowed the shotgun used in the killing for that purpose. This was denied by appellant and, of course, joined a factual issue on the subject of self-defense which was for the determination of the jury.

Since appellant does not contend there was no competent evidence to support the verdict of guilty only a brief general statement of the facts out of which the controversy arose is deemed necessary. According to appellant's version the trouble between him and the deceased arose out of an alleged relationship between the deceased and a woman who occupied an apartment adjoining appellant's. Her husband was in the service and according to the testimony of appellant the deceased called on her frequently both day and night. A hole had been bored in the plaster wall between the apartments and appellant could hear and see what transpired in the woman's room. Appellant testified the hole was there when he moved into the apartment. Appellant claimed the deceased had threatened to take his life by reason of gossip in which the deceased contended appellant had engaged concerning the deceased and this woman. According to appellant's testimony there had been rpevious quarrels between him, the deceased and the woman, which resulted in appellant having been beaten by both the woman and the deceased. Appellant testified that on the day of the assault Cole came to his apartment with something in his hand which was concealed behind him and threatened to kill appellant. The concealed article was a skillet. Appellant stated he warned Cole not to advance any farther but Cole continued to advance in a threatening manner and he shot him.

In the state's case in chief it offered, over appellant's objection, a record of appellant's conviction of the previous murder in the state of Oklahoma, a mandate of the Oklahoma Criminal Court of Appeals affirming the conviction but reducing the sentence to life imprisonment and a fingerprint record from the state penitentiary of Oklahoma. The transcript discloses the trial court took the offer under advisement and admitted only such portion thereof as showed the final decree and the nature of the offense. Counsel for appellant, at the trial, conceded that evidence would be competent on cross-examination of the appellant but contended it was inadmissible as a part of the state's case in chief. Appellant also contended there was no similarity in the offenses. The state contended it was a similar offense and as such the conviction was competent solely for the purpose of showing motive, intent, inclination and method of the commission of the crime. Touching the similarity of offenses the trial court stated:

'Whether he took a gun or a pistol or a shot gun, I don't think it makes any difference; they are similar offenses.'

The court stated at the time that it would admit it only for the purpose indicated by the state. The court further stated, at that time, it would instruct the jury in writing relative to the limited purpose for which it could be considered.

The cross-examination of appellant relative to the Oklahoma murder had been limited by the court to the fact appellant had shot a woman in Oklahoma by the name of Lizzie A. Morgan and to the method he employed in committing that murder, namely, by means of a 38-Colt's, a six shooter. Counsel for the state contended the court was too narrowly restricting the cross-examination and continued to ask questions to some of which the court previously had sustained objections. In the course of the cross-examination appellant volunteered the statement that the crime for which he had been convicted in Oklahoma was an accident. Thereupon counsel for the state inquired, 'How many times did you shoot her?' Notwithstanding the fact the court had previously sustained an objection to that question appellant nevertheless answered it as follows: 'I think it was twice.' The court permitted the last answer to stand for the reason the witness had already answered it. There was no motion to strike the answer. Without objection appellant was further asked and stated:

'Q. Were you convicted of that crime, Mr. Owen? A. What crime is that? Of killing a woman?

'Q. Yes. A. Certainly.'

The trial court ruled out all other questions touching the Oklahoma offense. Touching the purpose for which the evidence of the...