State v. Roberts

• Decision Date: 10 April 1915
• Docket Number: 19,667
• Parties: THE STATE OF KANSAS, Appellee, v. PAUL ROBERTS et al. (WALTER O. MULLINS, Appellant)
• Court: Kansas Supreme Court

147 P. 828

95 Kan. 280

THE STATE OF KANSAS, Appellee, v. PAUL ROBERTS et al. (WALTER O. MULLINS, Appellant)

No. 19,667

Supreme Court of Kansas

April 10, 1915

Decided. January, 1915.

Appeal from Wabaunsee district court; ROBERT C. HEIZER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MURDER--Trial--Verdict of Guilty--Death of Defendant--Verdict Should be Filed--Record Made. Where a defendant in a murder trial dies after a jury finds a verdict but before it is presented in court, the verdict should be filed and the journal of the court should record the cessation of the trial and the reason therefor.

2. MURDER--Joint Defendants--Information Sufficient. An information charging defendant and two others with murder giving time and place and the common recitals of a felonious charge, is sufficient although the theory of the prosecution is that the killing was committed by one of the others as a result of a conspiracy inspired by defendant and although the defendant was never personally present in the county where the homicide occurred.

3. MURDER--Venue--County in Which Accessory May be Prosecuted. Section 125 of the criminal code, which provides that an accessory to a felony may be prosecuted in the county where his part of the felony was committed, is permissive, not mandatory, and it is proper to prosecute him in the county where the principal offense was committed.

4. CHANGE OF VENUE--Ordinarily in Judicial Discretion. Rule followed that the determination of the trial court as to the propriety and necessity of a change of venue is final where competent testimony supports that decision and where there is no apparent abuse of discretion.

5. TRIAL -- Endorsing Names on Information -- Continuance. Rule followed that a continuance is not ordinarily demandable as a matter of right because the names of witnesses are endorsed on the information at the commencement of a trial.

6. JURORS--Qualification for Trial Court. Rule followed that qualification of jurors is for the determination of the trial court.

7. MURDER--Statements by Codefendant Made after the Murder Admissible against the Other Defendant. Where a defendant is prosecuted for murder upon the theory that he procured another to do the deed, the sayings and doings of the other after the murder are admissible to prove the fact that such other did the killing, the establishment of that fact being a necessary prerequisite to the defendant's conviction.

8. MURDER--Conspiracy--Statement of One Who Did the Killing Admissible under Proper instructions. Where two or three persons conspire to murder another and to shield and protect each other from discovery, prosecution and punishment therefor, the conspiracy is not concluded by the homicide so as to shut out all evidence after the murder which shows the sayings and doings of the one who did the killing, when that evidence is carefully restricted by clear and precise instructions to the jury that such evidence is only to be considered for the purpose of determining the guilt of the one who actually committed the deed.

9. SAME --Conversation between One Conspirator and His Wife Admissible. Where two or three persons conspire to murder another, there is no privilege which prevents the admissibility of conversations between one of the conspirators and his wife against another of the defendants on trial for the murder.

10. TRIAL--Instructions Relating to Evidence of Detectives. It is not necessary for the trial court to give special instructions concerning evidence given by detectives employed to unearth a crime.

11. EVIDENCE--Detectives--Instructions--Cases Overruled. The cases of The State v. Snyder, 8 Kan.App. 686, 57 P. 135, and The State v. Shew, 8 Kan.App. 679, 57 P. 137, are overruled.

John E. Hessin, of Manhattan, W. S. Roark, of Junction City, William Bowes, of Alma, and Lee Monroe, of Topeka, for the appellant.

S. M. Brewster, attorney-general, John L. Hunt, S. N. Hawkes, both assistant attorneys-general, and Oscar Schmitz, county attorney, for the appellee; W. H. Carpenter, of Marion, of counsel.

OPINION

DAWSON, J.:

This is an appeal by Walter O. Mullins from a conviction for murder in the first degree in the district court of Wabaunsee county. The victim of this homicide was Anthony King, who for some years had been a policeman in Junction City but who had retired from the public service, and shortly before his assassination had moved to Alta Vista, in Wabaunsee county, and there engaged in conducting a restaurant.

Mullins was charged jointly with Paul Roberts and A. L. Hartman in the killing of King. The state's theory of the case was that Roberts killed King at the instigation of Mullins. Separate trials were demanded and allowed, and Roberts was tried first.

After the conclusion of the case against Roberts the jury retired and found a verdict and reappeared in court, and upon the order of the court to bring in Roberts to hear the verdict the sheriff reported that he was dead in his cell. On the objection of Roberts' counsel, who were also the attorneys for Mullins, the verdict in the Roberts case was not filed and no final judgment entered. The verdict should have been filed and the journal should have recorded the cessation of the case by Roberts' death.

In the state's case against Mullins, the evidence tended to establish the following facts: Mullins resided in Junction City. He had a large farm near town, and was also engaged in contract work and at times employed a number of laborers. Sometime in 1910, while Anthony King was a policeman in Junction City, Mullins and King became unfriendly. In July of that year Mullins had a quarrel on the street with one Joe Baker, and King, the policeman, came up and ordered them to desist. Mullins called King a vile name and said, "You can't arrest me." King promptly knocked Mullins down and took him to jail. The blow was a severe one, and Mullins did not fully recover from its effects for several weeks. While still suffering from his injuries, Mullins drove out one day to his farm, accompanied by Fred Pickering, his employee, and Mullins offered Pickering "a good piece of money" to "get even with King." Next day Mullins suggested to Pickering how it might be done. He said, "King goes to the depot every night to pull the bums off the train. . . . You can get in between the cars . . . and get away with him that way." Mullins offered him $ 200 and a ticket to San Francisco. Pickering asked how he could escape, and Mullins said, "Leave that to me. I will take you to Riley Center, twenty miles north of Junction City, and put you on the Rock Island and you can get out that way." Mullins also said "he would get King if he had to send to Kansas City or Chicago . . . and get a big black nigger to get him."

Sometime later, King was shot at in the nighttime and his home burned but no evidence connected Mullins with these crimes, although a witness who accompanied King to his home noticed that King kept looking behind, and the witness saw that Mullins was following them. King retired from the police force, and early in September, 1912, he moved to Alta Vista and conducted a restaurant. Mullins, who had resided in the South, made a visit to Junction, Ark., on the Louisiana border, in the spring of 1912. Paul Roberts resided at Bernice, La., a few miles farther south. Mullins and Roberts had been acquainted there, and in July, 1912, Roberts appeared in Junction City, Kan., and was seen in company with Mullins. Soon after, Roberts returned to his home in the South. There he packed his trunk, into which he put buckshot shells, and told his wife on parting, "I am going back to Kansas; Walter Mullins wants me to do a job for him; I don't know but I expect the job will get me into trouble, but there is plenty of money in it, and as there is nothing but trouble for me, I am going back to do it." Roberts then returned to Junction City, Kan., and registered at a rooming house under an assumed name. On leaving Louisiana he told his wife to address him in care of Mullins. He was frequently seen in company with Mullins, and also with A. L. Hartman, the other codefendant. Roberts was seen on several occasions with Mullins' team. About the time King moved to Alta Vista, a Junction City newspaper announced that he had moved to White City to run a restaurant. Misled by this erroneous news item, Roberts appeared in White City and inquired for King's restaurant. Afterwards Roberts appeared in Alta Vista and called at King's restaurant several times. He drove Mullins' team to Alta Vista once or twice. He pretended to be a mule buyer, and worked a day or two at a quarry near by. Shortly before King's murder, Roberts told his landlady in Junction City that he had one trip to make and then he would be leaving, and he removed his trunk from his boarding place. He had a private conversation with Mullins the night before the murder. The morning of the murder he showed his landlady a handful of gold. Roberts appeared in Alta Vista the night of the murder and was seen in King's restaurant a few minutes before two shots were heard. Shortly afterwards Roberts came to the village hotel, and appeared excited and talked of killing. Roberts was a worthless character, a drunkard, drug fiend, gambler and braggart, and was wont to talk of killing people. In the presence of the landlord he drank several times from a whisky bottle, offered the landlord a drink, and later Roberts and one Murphy drank in Roberts' room, and Roberts recounted some of his killing stories to Murphy. Next morning King was found dead in his restaurant, with buckshot wounds in his body. Roberts was taken into custody by the city marshal and a deputy sheriff who accompanied Roberts to his room. A letter to...