State v. Phinis

• Decision Date: 12 July 1967
• Docket Number: No. 44925,44925
• Citation: 430 P.2d 251,199 Kan. 472
• Parties: STATE of Kansas, Appellee, v. Margaret PHINIS, Appellant.
• Court: Kansas Supreme Court

Page 251

430 P.2d 251

199 Kan. 472

STATE of Kansas, Appellee, v. Margaret PHINIS, Appellant.

No. 44925.

Supreme Court of Kansas.

July 12, 1967.

Syllabus by the Court

1. In a prosecution for unlawful possession and control of a pistol after conviction of a felony the investigatory facts and admissions elicited by the officers from the defendant and others concerning an alleged gunshot wound, were obtained 'on the scene', the statements made by defendant were knowingly and voluntarily made without coercion and they were properly admitted in evidence.

2. The record is examined and it is determined the defendant was fully advised of her constitutional rights under the guidelines of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, before custodial interrogation was initiated and any admissions made by the defendant thereafter were voluntarily and knowingly made without coercion and were properly admitted in evidence.

3. Although possession and control of a pistol as prohibited under K.S.A. 21-2611 turns upon more than a physical handling of the weapon the evidence of unlawful possession and control is examined and it is held: The circumstances surrounding defendant's firing of the pistol were sufficient to support the verdict of guilty and such verdict should stand.

John B. Markham, Parsons, argued the cause and was on the brief for appellant.

John Sherwood, Asst. County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., and Rex Lawhorn, County Atty., were on the brief for appellee.

FROMME, Justice.

The defendant, Margaret Phinis, was convicted of unlawfully having a pistol in her possession and control after being previously convicted of a felony contrary to K.S.A. 21-2611. The trial was before a jury on November 21, 1966. She was sentenced to the Kansas State Industrial Farm for Women. Appointed counsel has perfected this direct appeal from the conviction.

The two specifications of error urged are of a nature requiring a statement of the facts surrounding the charge filed. The facts developed at the trial are not in any great dispute except as to ownership of the pistol. Defendant was not charged with owning a pistol.

The defendant had previously served time at the Kansas State Industrial Farm for Women. She was charged in Labette county with first degree murder in 1953. The charge was reduced to manslaughter in the fourth degree and she entered a plea of guilty. She served her required time and was discharged in 1955. The journal entry of this prior conviction was introduced in evidence on testimony by the clerk of the district court of Labette county, Kansas.

The present charge against Margaret Phinis originated in the following manner. On September 4, 1966, the sheriff of Labette county, Kansas, went to a service station in Parsons in response to a call. He talked with Eddy Hill who had been injured. The sheriff took Hill to a medical center for treatment. The exact nature of Hill's injury was not certain but it appeared to be a gunshot wound.

The sheriff and a patrolman went to Lakin Cabins in Parsons to investigate further. They arrived at cabin six, were admitted to the cabin and they talked with the four persons present. Cabin six was a three room efficiency cabin rented and occupied by a Mr. Vance and his housekeeper, the defendant therein. The front room was used by Mr. Vance as his bedroom. The middle room was used as a kitchen and contained a sofa and other furniture. The room in the rear was used by the defendant as her personal living and sleeping quarters.

In addition to Mr. Vance and the defendant, Mr. Wright and Mr. Tatum were present. As a result of investigation by the officers and in response to general questioning the following investigatory facts were developed. The parties had gathered there on the special occasion of Mr. Wright's seventy-fifth birthday. The defendant had taken a few drinks that day in the company of her friends. Eddy Hill, a mutual acquaintance of Mr. Vance and the defendant, had arrived at the apartment without invitation. He had been drinking. Both Mr. Vance and the defendant made repeated requests for him to leave but the requests were ignored. The defendant got a .38 caliber revolver from a bedside table in her sleeping quarters and fired a shot into the floor to scare Eddy Hill out of the cabin. The bullet entered the floor in the kitchen, ricocheted into the front room and fell on a utility table. Eddy Hill fell to the floor and shouted, 'I'm shot, I'm shot.' He later left the cabin. The gun was not aimed at him and the bullet did not hit him. At the time of his arrival he was wearing a shoulder bandage to cover some prior injury. Mr. Tatum took the gun away from the defendant after the shot was fired. Mr. Tatum kept the gun under his belt until just before the officers arrived. He then placed it under a pillow on the sofa in the kitchen. In response to questions Mr. Tatum advised the sheriff of the location of the gun and the sheriff took the gun into custody. The sheriff asked all four persons present who owned the gun. Mr. Wright and Mr. Tatum said they did not know. Mr. Vance stated it was not his gun and he did not know the gun was in the cabin.

The defendant and Mr. Tatum were then taken to the polic station. Mr. Wright was not required to go because he had but one leg and was in a wheel chair. Mr. Vance also was confined to a wheel chair and he remained at home.

Mr. Tatum was questioned at the police station and released. The defendant was first advised of her constitutional rights and then questioned by the sheriff and the patrolman. No written statement was taken from the defendant. She was questioned for thirty minutes before being charged and placed in jail. Counsel was later appointed.

At the trial the sheriff testified without objection that when he questioned the defendant at the cabin and at the police station he asked if she owned the gun and she said she did. He asked at the police station if she didn't know it was a violation for her to have a gun in her possession and she said she knew it. She further told him she had been convicted of fourth degree manslaughter and had served her time. Her prior conviction was previously known to the sheriff.

The patrolman testified that before questioning defendant at the police station he filled out a standard form which explained 'their constitutional rights to them'. Defendant told the officers she was willing to talk and signed the form. Thereafter the defendant told them she fired the shot into the floor to scare Mr. Hill but the gun went off accidentally. She told the officers Mr. Vance owned the gun and gave it to her. The defendant admitted she had been convicted of manslaughter in 1953 and served sixteen months. No contemporaneous objections were made to any of this testimony. Wright, Tatum and Vance testified at the trial.

At the close of the state's evidence the defense moved for an 'acquttal' for the reason that defendant was not fully advised of her constutional rights at the time of the interrogation at the Lakin Cabins and at the police station. The motion was urged under the authority of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). I was considered and overruled by the trial court and is now specified as error. It was presented to the trial court on motion for new trial and overruled. The trial of defendant occurred in November 1966 and the authority of Miranda should be applied herein so far as applicable. (See Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882.)

The Miranda decision applies to both confessions and admissions. It sweeps away the bases of distinction. The court states:

'The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant. No distinction can be drawn between statements which are direct confessions and statements which amount to 'admissions' of part or all of an offense. The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination.' (384 U.S. p. 476, 86 S.Ct. p. 1629, 16 L.Ed.2d p. 725.)

For the present we pass over any question of the sufficiency of the advice of rights given to the defendant as measured by the guildelines in Miranda.

Such guidelines are a measure for the courts to apply in determining whether a confession or statement is voluntary and admissible. They are not to be used as a trap or a snare for the prosecution in the trial of a defendant. The defendant made no objection to the testimony of the officers concerning the admissions when such testimony was given. The officers testified that she was advised of her constitutional rights and she voluntarily signed a waiver form thereby knowingly giving consent to the interrogation. On cross-examination the defense elicited certain discrepancies in the substance of the advice of rights given to the defendant. The trial court found the guidelines set forth in Miranda had been substantially complied with and admitted the testimony of the officers as to the defendant's voluntary statements.

The defendant now contends she was insufficiently advised in that the officers did not specifically advise her that (1) she had a right to remain silent, (2) any statement she did make might be used as evidence against her, and (3) she had a right to the presence of an attorney during the interrogation, either retained or appointed.

The wording employed by the officers in advising her of these rights was not identical to that used by the United States Supreme Court in setting the guidelines in Miranda, but the import was the same. Even if the advice of rights was insufficient, admission into evidence of statements made by a defendant during...