State v. Scott

• Decision Date: 06 December 1924
• Docket Number: 25,772
• Citation: 235 P. 380,117 Kan. 303
• Parties: THE STATE OF KANSAS, Appellee, v. JOHN E. SCOTT, Appellant
• Court: Kansas Supreme Court

235 P. 380

117 Kan. 303

THE STATE OF KANSAS, Appellee, v. JOHN E. SCOTT, Appellant

No. 25,772

Supreme Court of Kansas

December 6, 1924

Decided July, 1924.

Appeal from Linn district court; EDWARD C. GATES, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. HOMICIDE--Murder of Defendant's Wife--Evidence Tending to Show the Presence of a Notoriously Disreputable Person from Another Town Near the Scene of the Homicide Was Erroneously Excluded. In a trial for murder, committed by one person in a residence, the state relied upon circumstantial evidence. The defendant's theory was that the murder was committed by an intruder fearing identification. Evidence was offered tending to show that within five minutes after the homicide a named person, whose home was in another town and who had a penal record for burglary, larceny and similar crimes, was observed near the scene of the homicide, and that he made his escape from the city in a few hours, and undertook by circumstantial evidence to connect him with the homicide. Held, it was error to exclude this evidence.

2. SAME--Evidence Tending to Show Defendant's Infatuation for and Criminal Intimacy With a Woman Other Than His Wife Competent to Show Motive. In a case where a husband is charged with the murder of his wife, and the state contends that the motive was defendant's infatuation for and criminal intimacy with another woman, causing defendant to want to get rid of his wife, any evidence of circumstances before or soon after the homicide which fairly tend to establish such infatuation and intimacy, at the time of the homicide, may be received, but evidence of circumstances which only by pure speculation can be said to tend to establish such facts, should not be received.

3. SAME--Evidence Tending to Show Trouble Between Defendant and Wife Properly Received. In a case where a husband is charged with the murder of his wife, evidence tending to show trouble between the husband and wife, prior to the homicide and continuing up to that time, is properly received.

4. SAME--Evidence Tending to Show Criminal Intimacy With Another Woman May Be Rebutted by Circumstantial Evidence. Upon the trial of one charged with the murder of his wife the state attempted to establish a motive by circumstantial evidence tending to show that defendant was criminally intimate with another woman. Held, that defendant was entitled to rebut that showing by circumstantial evidence.

5. SAME--Conclusions of Witnesses Drawn from Certain Facts Competent. Facts which are made up of a great variety of circumstances and a combination of appearances that cannot be fully described, such as excitement, grief, despondency and the like, may be shown by the opinion of ordinary witnesses whose observations are such as to justify it.

6. SAME--Certain Competent Written Evidence Erroneously Excluded. When a writing proper to be received in evidence is properly identified by a witness, it is error to exclude it for the reason that another person in the court room who may be called as a witness could also identify it.

7. SAME--Limitation as to Number of Impeaching Witnesses. The court should not make an unreasonable limitation as to the number of impeaching witnesses. In this case it was error to limit the number to five.

8. SAME--Erroneous Instructions as to Comparative Weight of Circumstantial and Positive Evidence. An instruction which places circumstantial evidence on a higher plane than positive evidence, and which indicates that it may be used only to establish guilt, is erroneous.

9. SAME--An instruction that positive evidence should be given greater weight than negative evidence, is erroneous when its only effect is to support a fallacious view of specific portions of the evidence.

10. SAME--Relatives of Deceased Witnesses for the State--Instruction Stating the Law of Inheritance Should Be Given if Requested. When a husband is on trial charged with the murder of his wife, who left an estate, and the parents and other immediate relatives of the deceased are witnesses for the state, an instruction stating the law of inheritance, in the event of a conviction or an acquittal, should be given, if requested, as having a bearing upon the interests of the witnesses in the result of the case.

Charles F. Trinkle, of La Cygne, and John A. Hall, of Pleasanton, for the appellant.

Charles B. Griffith, attorney-general, William A. Smith, assistant attorney-general, and W. W. Edeburn, county attorney, for the appellee.

Harvey J. Hopkins, J., dissenting.

OPINION

HARVEY, J.:

John Ellison Scott, charged with the murder of his wife on June 19, 1923, was found guilty of murder in the second degree, and he has appealed. The story disclosed by the record is substantially as follows:

Ellison Scott, as appellant is commonly known, was reared on a farm, and when nineteen years of age was married to Ella (Holt) Scott in 1911. No children were born to them. They lived on the farm a few years, then moved to La Cygne, where Ellison Scott worked in a store for about three years, and during this time his wife, Ella Scott, worked in a store for about a year and a half. Then with $ 3,000 which his father let him have and money he and his wife had saved they bought a grocery store and meat market, which they operated about four years and were operating at the time Mrs. Scott was killed. Both worked in the store, and they employed some help; Mr. Clyde McCullough worked for them some time; then Mr. T. R. Peters was employed in the meat department. He quit early in 1923, and McCullough was again employed. In the spring of 1923 Ellison Scott and McCullough formed a partnership to conduct a retail ice business, with McCullough as manager, at a place away from the store, and this was continued until the tragedy. Perhaps they employed other help at the store at times.

Nearly four years prior to the tragedy, Arlene Scott came to live with Mr. and Mrs. Ellison Scott while attending high school. Her mother is a sister to Ella Scott, but her father, Clarence Scott, is not related to appellant, though having the same surname. Arlene's parents lived in the country some twenty-five miles from La Cygne, where there was no high school. Arlene spent the summer months at home and the school year at the home of her aunt and uncle, Ella and Ellison Scott. While there she attended school, helped Ella Scott with the housework and helped in the store on Saturdays. She graduated from the high school in May, 1923, and went to Pittsburg to attend a summer session of the State Teachers College, and was there at the time of the tragedy.

The Scott home was in the residence part of La Cygne, several blocks from their store, which was in the business part of town, and is situated on the southwest corner of the block. The main part of the house is a story and a half; it faces south, where there is a front porch and door; the west room downstairs was used for a bedroom, and in it was a cedar chest; the east room was the living room, into which the front door opened, and having a window east of the front door on the south; from the main part of the house there is a one-story extension north, which is fourteen feet wide and possibly twenty-four feet long, making the foundation for the entire house in the form of a T. This extension was divided by a partition so as to make a narrow room on the north which was used for a kitchen, and the remainder fourteen by seventeen feet was used as a dining room. Along the east side of this extension is a cement porch, seven feet wide. There is a door on the west of the dining room, where there is just a step and then the lawn; there is a door on the east of the dining room onto the porch, also a door from the kitchen onto the porch, a door between the kitchen and the dining room, and a door from the dining room into the living room. The dining room is lighted by two drop electric lights which turn on by pulling a cord near the lights. One of these was north and east of the central part of the ceiling. The dining table was set against the east side of the dining room north of the door leading to the porch, and a couch was on the west side of the room. On the east side of the cement porch vines were growing so as to cover the side of the porch from the ground to the ceiling, except directly in front of the door from the dining room. Just to the northeast of the north end of the porch is the cistern; there is a cement walk from the north end of the cement porch north to a toilet and coal house near the alley, and from this walk a few feet south of the outbuildings a walk extends at right angles west to the garage, which is on the rear of the lot near the west side and is entered with a car from the street on the west. The Scotts had a seven-passenger Studebaker touring car, which both of them drove and which was kept in the garage when not in use. There is lawn south and west of the house and extending around north to about ten feet east of the cement walk. There were several large maple trees in the yard to the south and west of the house. Northeast of the house is the garden with flowers and shrubbery about it and along the alley east of the outbuildings.

Directly across the street south of the Scott home lived Reverend Molesworth, the Methodist minister, and his wife. Reverend Hanson, the district superintendent, was there the evening of the tragedy. East of them in the same block P. D. Leivy and wife lived, their house facing north. Directly across the street west of the Scott home in a house facing to the east and south lived Mr. Carnagey and wife and two grown daughters, teachers, one an instructor in the State Teachers College at Pittsburg, a son-in-law, Herschel Helms, his wife and a grand-daughter, ...