State v. Palmer

Decision Date06 December 1952
Docket NumberNo. 38646,38646
Citation251 P.2d 225,173 Kan. 560
PartiesSTATE v. PALMER.
CourtKansas Supreme Court

Syllabus by the Court.

Examining the record in a case in which appellant was charged with murder in the first degree and found guilty of murder in the second degree it is held: The trial court erred (1) in permitting the state in its case in chief to introduce evidence of previous offenses committed by defendant which were unrelated to the one for which he was being tried; (2) for refusing to instruct on the second and third degrees of manslaughter; (3) in failing to have the bailiff sworn as required by G.S.1949, 20-312 and 62-1448; and (4) in not sustaining defendant's motion for a new trial.

D. Arthur Walker, of Arkansas City, argued the cause, and Norman M. Iverson, W. L. Cunningham, Wm. E. Cunningham, and William R. Howard, all of Arkansas City, on the briefs, for appellant.

Lawrence E. Christenson, County Atty., of Winfield, argued the cause, and Harold R. Fatzer, Atty. Gen. and Paul E. Wilson, Asst. Atty. Gen., on the briefs, for appellee.

HARVEY, Chief Justice.

Elbert Palmer, commonly known as 'Babe' Palmer, was duly charged by an information filed in the district court of Cowley county with the crime of murder in the first degree in shooting and killing Robert M. Bradley. Upon a trial the jury found him guilty of murder in the second degree. His motion for a new trial was overruled, the court approved the verdict and sentenced him to fifteen years in the penitentiary. He has appealed and contends the court erred (1) in admitting evidence offered by the state in presenting its case in chief, of voluminous testimony, information, journal entry and verdict of the jury in remote, unrelated convictions of defendant; (2) in refusing to instruct as to lesser offenses of which defendant might have been found guilty under the information and evidence; (3) in failing to have the bailiff sworn as required by G.S.1949, 20-312 and 62-1448, and in permitting the bailiff to take exhibits to the jury room which were not in evidence; (4) in not sustaining defendant's motion to be discharged, and (5) in not granting defendant a new trial.

Having examined the abstract, counter-abstract and briefs of the parties, and also the transcript of more than 500 pages, the pertinent facts, necessarily omitting many details, may be summarized as follows: Robert M. Bradley and Charles Mays had lived in Topeka several years, where they were employed in construction work. Sometime in the summer of 1951, perhaps in July, they went to Winfield, where they got employment at the Binney & Smith plant. They had a room together at 1618 Manning street. Some months prior to going to Winfield Mays had obtained a .22 caliber pistol, the chamber of which held eight shells, which he kept in his grip. Sometime prior to going to Winfield Mays had made the mistake of selling a pint of whisky to a revenue officer and was on parole. On Friday, August 31, 1951, Mays and Bradley quit their jobs in Winfield and drew their pay. Sometime that day Bradley saw the pistol among Mays' belongings and said he had better carry it, for if Mays was found with it, it might cause him trouble with his parole. Bradley took the pistol and stuck it in his belt in front on the left side. He was wearing a sport shirt and the outline of the pistol was readily seen by anyone who observed him. They put in the afternoon and evening, part of the time at some place where they could find liquor, and a part of the time at the Legion hall. Saturday morning they got up late and about noon went to a place at 202 East Fourth street in Winfield known as the 'Ben Alberty Place' or 'Dave's Place.' This seemed to be down near the railroad tracks. There they found people drinking and a dice game going on in the kitchen. The party got noisy and the Reverend Crawford, who lived next door, appears to have complained about it to the police. Bradley was particularly noisy and boisterous; had a quarrel with someone about a 75 cent bet. Mays and Bradley met a Tillie Douglas, who lived at Dave's Place and sometime, perhaps soon after noon, the three of them drove to Arkansas City, where Mays and Bradley expected to get employment, and did so. While there they bought two bottles of whisky of the size known as 'Fifths'. They drove back to Winfield and to their room on Manning street. There they opened one of the bottles and each of them had a few drinks. They went back to Dave's Place, taking one of the bottles of whisky with them. There they were not stingy with the whisky; the bottle was passed around. A number of persons drank and there was testimony that Bradley had three drinks. About 3:30 or 4:00 o'clock in the afternoon the crowd was getting noisy again and the crap game in the kitchen was broken up. A number of persons were at Dave's Place in the afternoon. Among them were Babe Palmer and his wife's sister, Bernice Thomas. Dave Anderson, who lived at the place, told Babe Palmer that Bradley was carrying a gun and that he was boisterous and rough and a dangerous man. Babe and Bernice went to his home about a block from Dave's Place. Soon thereafter Tillie suggested to Mays and Bradley that they go to Babe's home, which they did. Babe Palmer was not acquainted with Mays and Bradley prior to that day--had never met them and had not invited them to his house. When Mays and Bradley went in the Palmer home Babe Palmer asked them if they wanted to gamble. Mays replied yes, if there were dice. Babe Palmer's house has three rooms on the ground floor and a sleeping room upstairs. It faces to the south. The east room is the living room. There is a door on the south side of the room not far from the southwest corner and a porch along the south side of the house in front of that door. That was the door that was being used as an entrance to the residence. In this living room was a divan along the north side of the room with the east end near the east wall. Sitting a few feet to the south of it was a coffee table. In the southeast portion of the room was a bed sitting at an angle from northwest to southeast. There was a bureau somewhere in the room and also some trunks or lockers and chairs. Directly west of the sitting room is the kitchen. There is a door between the two rooms near the south end of the partition between them. Directly west of the door was a gas cooking stove. There were chairs, a dining table and other furniture in the room. The downstairs bedroom is directly north of the kitchen. When Mays said he would gamble with dice they went in the kitchen, where the dining table had been covered first with papers and then with cloth, apparently fixed for the shooting of dice. Two red dice were on the table. Mays started to shoot dice, said he shot only once, and told Palmer that the dice were crooked. Palmer asked him if he wanted his money back. Mays answered that he would just keep the dice, and put them in his pocket. He said he had lost not more than four dollars. Mays went out into the living room. Bradley stayed in the kitchen. A number of other persons came in perhaps as many as eight or ten. Most of these were in the kitchen, some of them shooting dice, others standing around watching the game. Bradley was shooting dice. Apparently he took his shirt off and hung it on the back of the chair. He was still carrying the pistol in his belt, which of course was plainly seen. He was boisterous, talking in a loud voice, and got in a quarrel with someone about a two dollar bet. He was quoted as saying in a loud voice that he would just as soon kill a man or get killed over two dollars as over a dime. This phrase was quoted somewhat differently by the different witnesses. Palmer was in the kitchen while the quarrel was in progress. Whether he was engaged in it is not clear. There was another quarrel about a torn dollar bill. Apparently Palmer was engaged in that quarrel, for he came through the door into the living room with a part of the torn bill in his hand. Whether that quarrel was with Bradley or someone else is not clear.

About the time Palmer went into the living room from the kitchen the dice game broke up and most of the people in or about the game left. When Palmer came into the room he went over and sat down on the divan or stood and reached down near the northeast corner of the living room. The evidence on that is in conflict. Bradley came out of the kitchen while Mays and Bernice Thomas were standing visiting. Mays testified Bernice was nice looking and that he liked her, although he had met her that day for the first time. Bradley stepped up and said something about Bernice being nice looking and asked if she was married and was informed that she was not. Then Bradley made a remark to the effect that a woman who was as nice looking as Bernice and who was not married there was something wrong with her. There is testimony to the effect that Bernice told Bradley he was making too much noise and there was too much trouble and he had better leave the house, and that Bradley in a loud voice resented that criticism and said that no damned woman could tell him when to leave the house. There was also testimony that instead of using the word 'woman' he used the one which reflected on the morality of Bernice, and also that Bradley struck her and knocked her over the coffee table. Mays, testifying for the state, said he did not see that. At that time Palmer came up and told Bradley that he should not treat a woman that way or talk to her that way. Bradley, who had been carrying Mays' .22 revolver since Friday, immediately drew it from under his belt and pointed it at Palmer, and, as testified by Mays, started backing toward the door. Palmer testified that Bradley shot at him and hit him in the left arm. In any event just after Bradley drew his revolver and pointed it at Palmer, Palmer shot Bradley with a .45 caliber army Smith & Wesson revolver. In fact he shot twice, the shots...

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