State v. Sagebiel, 45890

• Decision Date: 23 January 1971
• Docket Number: No. 45890,45890
• Citation: 206 Kan. 482,480 P.2d 44
• Parties: STATE of Kansas, Appellee, v. Jim SAGEBIEL, Appellant.
• Court: Kansas Supreme Court

Page 44

480 P.2d 44

206 Kan. 482

STATE of Kansas, Appellee, v. Jim SAGEBIEL, Appellant.

No. 45890.

Supreme Court of Kansas.

Jan. 23, 1971.

Syllabus by the Court

1. Generally, error in overruling a challenge to a juror for cause is not ground for reversal when the juror does not sit in the case and when the accused is not in some way prejudiced thereby.

2. Although our statutes contemplate the use of peremptory challenges on jurors qualified for cause, error in the court's ruling on a challenge for cause, especially if the soundness of the ruling is seriously debatable, does not require a reversal of judgment of conviction, if in fact, as here, the defendant had a trial before an impartial jury. (Following State v. Hooper, 140 Kan. 481, 502, 37 P.2d 52.)

3. A verdict of guilty which has been approved by the trial court will not be set aside because of insufficiency of evidence, unless it is clearly made to appear that upon no hypothesis whatever is there substantial evidence to support the conclusion reached in the trial court. (Following State v. Paxton, 201 Kan. 353, Syl. 4, 440 P.2d 650.)

4. An accused is not entitled to an acquittal simply because he has produced expert witnesses, psychologists or psychiatrists, who testify in answer to hypothetical questions based upon facts put in evidence by the accused and who conclude upon facts given them that the accused was insane when the offense was committed.

5. The question whether a defendant in a criminal action was sane or insane at the time of commission of the offense with which he stands charged is one to be determined by the jury, under proper instructions from the court, upon the evidence introduced bearing upon such issue.

6. The record is examined in a case wherein defendant was convicted of murder in the second degree and it is held no prejudicial error is shown.

Shelley Graybill, Elkhart, argued the cause and Jacob S. Graybill, Wichita, was with him on the brief for appellant.

Keaton G. Duckworth, County Atty., argued the cause and Kent Frizzell, Atty. Gen., was with him on the brief for appellee.

FROMME, Justice.

The defendant, Jim Sagebiel, appeals from a conviction of second degree murder. He was arraigned on a charge of first degree murder in connection with the death of Malcom Keyser. The case was tried to a jury.

Malcom Keyser died in a livestock sales pavilion in Elkhart, Kansas. An altercation occurred between Keyser and the defendant outside the sales pavilion. A few minutes thereafter the defendant followed Keyser into the sales pavilion office and shot Keyser several times at close range with a hand gun in the presence of witnesses. Additional facts will be developed as three specifications of error are examined.

Defendant first attacks the qualifications of two veniremen who were challenged but not excused for cause. The basis of defendant's challenges is K.S.A 62-1409 which reads:

'It shall be a good cause of challenge to a juror that he has formed or expressed an opinion on the issue or any material fact to be tried.'

The first venireman challenged for cause to be considered herein is a Mrs. Melia.

In the case of Mrs. Melia she stated she was not acquainted with the defendant. She had previously read newspaper articles and had talked to people about the incident. She had formed and expressed opinions about the incident but thought she could make an independent judgment she the case based solely on the evidence and in accordance with the court's instructions.

Eighty-seven veniremen were examined on voir dire. Forty-nine were challenged and excused for cause. Mrs. Melia was not one of the forty-nine excused for cause. She was subjected to intensive questioning by both the attorneys and the court. She was removed later from the panel by peremptory challenge so she did not sit as a juror in the trial of the case.

Generally, error in overruling a challenge to a juror for cause is not ground for reversal when the juror does not sit in the case and when the accused is not in some way prejudiced thereby. (State v. Hoy, 199 Kan. 340, 345, 430 P.2d 275; State v. Paxton, 201 Kan. 353, 359, 440 P.2d 650.)

In State v. Hooper, 140 Kan. 481, 37 P.2d 52, this court said:

'* * * While our statutes contemplate the use of peremptory challenges on jurors qualified for cause, error in the court's ruling on a challenge for cause, especially if the soundness of the ruling is seriously debatable, should not require a reversal of judgment of conviction, if in fact, as here, the defendant has a trial before an impartial jury.' (P. 502, 37 P.2d p. 64)

The constitutional guaranty requires that an accused be tried by an impartial jury. When a venireman is removed from the panel by peremptory challenge his qualifications or lack of them are no longer a controlling factor upon which to base prejudicial error on appeal. The question in such case is whether the jury who tried the accused was composed of impartial citizens. (State v. Springer, 172 Kan. 239, 239 P.2d 944.)

Mrs. Melia was not one of those jurors who tried this case. Under the reasoning in State v. Hooper, supra, the soundness of the court's ruling is, at least, within the realm of fair debate and the ruling does not reguire a reversal of the conviction.

The second venireman whose qualifications as a juror were attacked unsuccessfully on voir dire was a Mr. Bultman. He remained on the panel that tried this case. He was subjected to intensive examination on his qualifications.

In response to questions, Mr. Bultman stated he had known the defendant for fifteen years and this acquaintanceship would have an effect on his judgment in the case. He had read newspaper articles and had some opinions as a result of what he read. He had expressed no positive opinion about what happened but did have an impression about the incident. When asked if he could conscientiously listen to the evidence presented in the case and then apply the law as instructed by the court, he said: 'I think I could.'

Only two challenges for cause were overruled by the court, the challenge to Mrs. Melia and the one to Mr. Bultman. Bultman was not challenged peremptorily and was permitted to remain. We are not told why defendant chose not to exercise one of his twelve peremptory challenges on Bultman. Appellant raises no question as to the objectionable character of any of the other veniremen. Presumably, defendant used one peremptory challenge on Mrs. Melia. His remaining eleven challenges were used on prospective jurors against whom he voiced no objection during his extensive voir dire examination.

In a criminal prosecution the question of whether a challenge for cause of a prospective juror should be sustained because he has formed or expressed an opinion as to an issue in the cause is addressed to the sound discretion of the trial court and the decision thereon will not be distrubed unless it appears the trial court abused its discretion. (State v. Springer, supra; State v. Hooper, supra.)

Mr. Bultman stated he thought he could conscientiously listen to the evidence presented in the case and then apply the law a instructed by the court. The nature of the opinions formed and expressed by the juror are not disclosed. The trial court and the attorneys were not convinced of any bias on his part when he was permitted to sit.

In State v. Stewart, 85 Kan. 404, 116 P. 489, this court discussed what constitutes a disqualifying opinion. It was said:

'It is impossible to give a definition that will fit all cases, and whether what is called an opinion will disqualify is a question of fact determinable from the manner, appearance, and expressions of the proposed juror, the source of his information, the form of the questions to which his answers are given, and from these and other things the trial court is to determine whether his opinion is fixed and positive, or whether he is an unprejudiced man, whose impression or opinion is wholly contingent upon the truth or falsity of the information he has received, and who is free to hear and impartially consider the evidence and to render a verdict without regard to any former impression or opinion which he may have had. If it is of the latter kind and the trial court decides that he is a competent juror, there is no reason for interfering with the decision. * * *' (P. 410, 116 P. p. 492.)

This court cannot say the trial court abused its discretion in overruling the challenge to Mr. Bultman for cause.

Appellant's next specification of error attacks the sufficiency of the evidence to establish beyond a reasonable doubt that appellant caused the death of Mr. Keyser.

A blood sample drawn during an autopsy from the dead body of Mr. Keyser was sent in for testing. An analysis of the specimen indicated that the blood specimen contained .447% methyl alcohol. A chemist testified that methyl alcohol is a poison and a blood concentration of .447% methyl alcohol is lethal.

The blood specimen had been drawn from the body of Keyser by a mortician prior to starting the embalming process. The embalming process in this case included the circulation of an embalming fluid containing 35% methyl alcohol into the arterial system of the dead body. The mortician testified that he first withdrew the blood sample into a glass vial. When he inserted the stopper a triangular piece of glass broke from the top of the vial. He placed the vial in a cabinet where he kept his embalming instruments. He then began the embalming process.

Dr. Dodson who did an autopsy on the dead body of Mr. Keyser testified that on the following day he poured this blood sample from the broken vial into another vial and gave it to the sheriff to send in for analysis. He testified that during the autopsy he noted various gunshot wounds on the body of Mr. Keyser. One such wound was in the right chest two inches lateral of the midsternal area. A similar wound appeared in the right arm and another in the left thigh. There...