State v. Stubbs

• Citation: 349 P.2d 936,186 Kan. 266
• Decision Date: 05 March 1960
• Docket Number: No. 41643,41643
• Parties: STATE of Kansas, Appellee, v. James Jacob STUBBS, Appellant.
• Court: United States State Supreme Court of Kansas

Page 936

349 P.2d 936

186 Kan. 266

STATE of Kansas, Appellee, v. James Jacob STUBBS, Appellant.

No. 41643.

Supreme Court of Kansas.

March 5, 1960.

Rehearing Denied April 13, 1960.

Syllabus by the Court.

The record examined where defendant was convicted of the commission of the crime of murder in the second degree under G.S.1949, 21-402, and it is held:

1. The trial court did not abuse its discretion or err, during the state's testimony, in granting a continuance to give sufficient time for an important witness to appear.

2. Complaints of error not presented on motion for new trial will not be considered on appeal.

3. Ample, substantial, and uncontradicted evidence supports the trial court's order overruling defendant's demurrer to the state's evidence, and supports also the verdict of the jury.

4. If, without proof of a motive, the evidence is sufficient to satisfy a jury of a defendant's guilt beyond a reasonable doubt, no motive need be shown.

5. When the full instructions of the trial court are not in the abstract of the record, it is assumed the jury was properly and fully instructed.

6. The trial court, before admitting a written statement for the jury's consideration, and in the absence of the jury, properly determined that the statement was freely and voluntarily made.

7. Defendant had capable counsel and a full, fair, and adequate trial.

8. G.S.1949, 62-1516 provides the manner in which a trial court shall set out the previous conviction, or convictions, whereby 21-107a becomes operative and applicable.

9. The trial court did not err in overruling defendant's motion for new trial and properly sentenced him under G.S.1949, 21-107a.

James Jacob Stubbs, pro se.

Loyd H. Phillips, County Atty., Great Bend, argued the cause, and Jerry L. Griffith, Asst. County Atty., Hoisington, was with him on the briefs for appellee.

ROBB, Justice.

Defendant was formally charged and tried by a jury whereby he was convicted of the commission of the crime of murder in the second degree. (G.S.1949, 21-402.) Defendant moved for new trial and the motion was overruled. The trial court entered judgment and upon the county attorney's pleading two previous felong convictions, the trial court, pursuant to the habitual criminal statute (G.S.1949, 21-107a), sentenced defendant to a term of sixty years. Defendant appeals from the verdict of the jury, the order overruling his motion for new trial, and judgment and sentence of the trial court.

On September 8, 1958, defendant was brought before the district court of the twentieth judicial district in Barton county and upon the county attorney's application, Richard C. McGrath and Warren W. Wagoner were appointed to represent him on a complaint charging him with commission of the crime of second degree murder. Thereafter preliminary hearing was waived. On December 8, 1958, upon defendant's expression of dissatisfaction with Mr. Wagoner and on request for a replacement, Wagoner was removed and the trial court appointed Robert E. Southern, a former Barton county attorney, as co-counsel with McGrath.

On December 15, 1958, trial began upon the information charging defendant with murder in the second degree in violation of G.S.1949, 21-402. Defendant waived arraignment and entered a plea of 'not guilty.' Thirteen jurors, one an alternate by pretrial agreement of counsel in open court, were impaneled and sworn to try the cause.

C. L. Wegele, the state's first witness, identified defendant as the man who, on September 5, 1958, at approximately 12:30 a. m. had flagged him at the intersection one mile south of Hoisington on U. S. highway 281 and he had stopped and picked defendant up. Defendant had no shirt on and had 'mud, blood and stuff on his face and body.' Wegele noticed the knife in defendant's hand (the record shows it was admittedly the murder weapon) and upon Wegele's request, he gave the knife to Wegele who laid it on the floor boards on the driver's side of the car. Defendant told Wegele not to finger the knife too much. Wegele noticed blood on the blade when he delivered the knife to officer Nettlingham in Hoisington.

Nettlingham testified that as defendant got out of Wegele's car, he asked Nettlingham if he knew Mr. Carl Harned, the deceased victim, and Nettlingham answered that he did. Nettlingham sealed the knife in a manila envelope and later turned it over to Vance H. Houdyshell of the Kansas Bureau of Investigation. Defendant told Nettlingham that Harned was 'out to the farm dead;' defendant was not sure what had happened but he had come to with this knife in his hand; Harned was cut up and there was blood all over the place; Harned did not have a sign of pulse and he knew Harned was dead; he remembered that he and Harned had walked through a door and someone hit him but it was not Harned; next thing he knew he came to with the knife in his hand, lying beside Harned covered with blood; defendant kept asking himself and Nettlingham, 'How could I do that to a friend of mine, an old man like that?' Defendant had a knot and cut above his right eye, his face was bloody, his hands were covered with blood, a considerable amount of blood and mud was on his trousers, and some spots of blood were on his undershirt.

Luther Tindall, deputy sheriff, testified he asked defendant what happened and he answered, 'I cut a man's throat * * *. Carl Harned, do you know him?' Tindall said, 'Yes.' Defendant said Harned was dead because there was no pulse and he must have done it because he was the only one there. Tindall and the sheriff went to Harned's home where they found Harned's body and on the back of a chair hung defendant's shirt, which was later identified by defendant. On cross-examination Tindall stated defendant told him he had cut a man's throat; that he did not see how he could have but he was the only one there.

Coroner L. R. McGill said Harned's jugular vein on the left side was severed in two places by two cuts an inch apart which had caused his death about two hours previously. There was a fatal stab wound on the left side of the chest wall and two or three cuts in the back. These were in addition to a large cut on the left shoulder blade. This testimony was substantially corrobrated by Ted C. Burgat, the mortician, except that there were three instead of two cuts and severances of the jugular vein on the left side.

Doctor William R. Evans, with their written consent, took blood samples from both defendant and his wife, and Vance H. Houdyshell took a sample from the deceased. Houdyshell further corroborated the testimony of the officers previously testifying, identified the knife as a skinning knife, and in addition, stated that defendant could remember that his wife had struck him with a jack handle or tire iron but as to subsequent happenings, he was confused and wanted more time to think it over. Later defendant told the county attorney and Houdyshell that while he was sitting in a chair, Harned had put his finger in defendant's face or slapped defendant. He had told Harned not to do it again but Harned did and he (defendant) must have reached over on the table, picked up the knife, and took a cut at Harned's throat. The blood flew, there was a gurgling noise, and Harned stumbled and fell. Defendant stated he could have cut Harned one or fifty times. He had been taught and had acquired a habit of fighting with a knife with either hand since he was twelve years old. In Kansas City he had had a drunken knife fight with a drinking buddy, and in Great Bend had gotten a bang out of beating a Mr. Ozbun and watching him jump up and run when the fight was stopped by somebody turning on a porch light. When they went to the Harned home, defendant showed Griffith, Phillips, Tindall, and Houdyshell the chair in which he was sitting, or by which he was standing, when Harned slapped him. There was no doubt he must have reached on the table, picked up the knife and taken a cut at Harned's throat. Defendant had gone over and lay down four or five feet from Harned's body and when he came to he noticed the knife in his (defendant's) right hand. He was ready to make a statement, which was given on September 6, 1958, at 11:45 a. m. The statement was signed by defendant and witnessed by Houdyshell and Phillips at 4:30 p. m. the same day.

The statement was marked as exhibit 23 and offered. Southern objected thereto. The trial court excused the jury and after a lengthy colloquy with counsel, admitted the statement. It was then read to the jury. The signed statement is lengthy and summarizing it would add little, if anything, that would be pertinent hereto. However, it may be mentioned the statement included more detail as to Mrs. Stubb's connection with, and the activities leading up to, defendant's being hit, being slapped by Harned, and the ultimate cutting of Harned, which resulted in his death.

Because of the inability of Peter G. Duncan, special agent for the Federal Bureau of Investigation to be present and testify, during the state's presentation of its evidence and over the objection of defense counsel, the trial court recessed from 5:00 p. m. on December 15, 1958, until 9:00 a. m. on December 17, 1958.

A medical technologist in charge of the Forbes Air Force Base Hospital at Topeka testified that the sample of Harned's blood showed it was group B type, that defendant's was group Q,...