State v. Taylor

• Decision Date: 11 November 1933
• Docket Number: 31411.,31226
• Citation: 26 P.2d 598,138 Kan. 407
• Parties: STATE v. TAYLOR (two cases).
• Court: Kansas Supreme Court

26 P.2d 598

138 Kan. 407

STATE v. TAYLOR (two cases).

Nos. 31226, 31411.

Supreme Court of Kansas

November 11, 1933

Syllabus by the Court.

Showing made in application for change of venue held not sufficient to require granting thereof, notwithstanding no counter affidavits were submitted.

Ease with which jury was obtained and qualified on their voir dire, before application for change of venue was denied, held of probative force to show that change of venue was unnecessary.

Where parents of minor children are estranged, and mother finds home for children in her brother's home, father's equal right to custody of children does not include right to go to home where children are kept at late hour of evening nor to shoot wife and her brother protesting against father's taking child (Const. art. 15, § 6).

Conviction for felonious assault on brother-in-law held not ground for defendant's discharge or acquittance for felonious assault on his wife, notwithstanding shooting occurred in same affray.

The consolidated records of two appeals pertaining to separate trials, convictions, and sentences for separate felonious assaults upon two persons committed in a single affray examined, and held:

(a) The showing made in support of an application for change of venue was not so persuasive as to require that it be granted, although no counter affidavits were adduced by the state to resist it.

(b) The ease with which a jury was obtained and qualified on their voir dire to try the cause, before the application for change of venue was denied, was of some probative force to show that a change of venue was not necessary to insure the defendant a fair trial.

(c) Error assigned on the instructions given and refused, touching the right of estranged parents to the custody of a child and of a parent's justification in the use of force in asserting that right, considered, and no error discerned therein.

(d) Where parents of minor children are estranged, and the father leaves home and the mother finds a home for her children in that of her brother, the estranged father's equal right to the custody of his children does not extend to the right to go to the home where the children are kept at a late hour of the evening, seizing one of them with a declaration that he will take it away with him, notwithstanding the frantic screams of its mother and the temperate protests of her brother, nor was the father justified in shooting his wife and her brother under the circumstances.

(e) A conviction for the crime charged in the shooting of his wife's brother was not ground for defendant's discharge or acquittance of the crime involved in shooting his wife by a separate shot from those which he fired at and which wounded her brother, although it occurred in the same affray.

Appeals from District Courts, Douglas and Franklin Counties: Hugh Means, Judge.

George F. Taylor was separately convicted of assault with intent to commit manslaughter find of assault with intent to kill, and he appeals.

Judgments in both cases affirmed.

George K. Melvin and R. E Melvin, both of Lawrence, and Elmer E. Hall, of Kansas City, Mo., for appellant in both cases.

R. B. Stevens, of Lawrence, for the State in both cases.

DAWSON Justice.

These appeals which have been consolidated for review pertain to separate convictions of defendants for felonious assaults committed on his wife and brother-in-law.

Case No. 31226 presents the record of the trial in the district court of Douglas county for the assault on defendant's brother-in- law; and case No. 31411 presents the record of the trial in the district court of Franklin county, upon a change of venue, for the assault on his wife.

It appears that the plaintiff George F. Taylor and Bessie Christenson Taylor were married in 1921. Four children were born to them. At the time of the incidents narrated below, these were Ellard Wesley aged 11, Edgar 7, George Earl 5, and Herbert 2. The family lived for a time in Missouri, then in Iowa, again in Missouri, and eventually in Lawrence, Kan. The domestic life of husband and wife was not a happy one. The wife testified that on various occasions defendant threatened to kill her. In January, 1932, he chased her out of the house with a gun. She called the police and he was locked up for two days. About May 1, 1932, the discordant couple finally separated. Mrs. Taylor took her children to the residence of her brother Everett Christenson in Lawrence, and they have made their home with him since that time. Taylor traveled about the country--to Wichita, to Kansas City and elsewhere.

On July 6, 1932, while enroute from Wichita to Kansas City, Taylor called at the Christenson home about 9 o'clock at night. Mrs. Taylor and the children were eating supper. He spoke to his wife through the window, saying, "Bessie, can I come in and see the children?" She said, "Yes, come in." He came in and kissed the children. Mrs. Taylor began to search his pockets to discover if he was armed. He drew out $10 and gave it to her, saying, "Here, take this, if that's what you're wanting." He also said he had a watch in his automobile for Edgar and went out to get it. The mother and two oldest children went along. About that time the brother-in-law Everett Christenson came home and found the two youngest children at the supper table. He took the baby on his arm, and George Earl by the hand, and went outside; and in the semidarkness saw his sister talking to defendant. Taylor said, "Let me see little George Earl," and picked him up. Then he said, "I think I will take little George Earl with me," and set the child down in the seat of his automobile. The mother screamed and rushed to recover it. Christenson, who still held the baby in his arms, put one foot on the running board and said, "Listen, George, you can't do that; you shouldn't do that." Taylor backed out of the car with a gun. Christenson beat a rapid retreat. When he had gotten about 15 feet away, Taylor shot him in the back. This caused Christenson to let the baby fall, but he continued to run. When he was about 10 feet further away, another bullet from Taylor's gun struck him on the back and he fell. Taylor then turned his attention to his wife. He shot at but missed her; then he seized her and shot her in the left breast. She testified: "I remember seeing him turn and shoot at me. It seemed to me that a furnace must have grazed me. I remember that he grabbed me. It felt like a furnace or red hot poker, wonderful sensation just like a red hot poker going through me. I remember distinctly that it was Everett Christenson that was shot first. He shot him twice. He didn't grab me until he shot once and missed me, and then pointed here (indicating) here (indicating) and here (indicating). He wanted to be sure he got the right place. Finally I had that wonderful sensation to go through me; just like fire. I didn't see any fight there between my brother and George Taylor. There wasn't any such fight. I distinctly remember that. I was in the hospital nearly eight months."

Taylor then fled, taking the child with him. He changed automobile license numbers in Ottawa. At Arkansas City next day he cashed a $1,000 bond and withdrew a deposit of $250 from a local bank there, and was arrested in Laredo, Tex., three days later.

Separate prosecutions for the shooting of the two persons were instituted against defendant in Douglas county. Separate motions for a change of venue were filed. The trial court took these under advisement, and eventually overruled the application in case No. 31226, and granted it in case No. 31441. The jury returned a verdict of guilty of assault with intent to commit manslaughter in the case tried in Douglas county, and in Franklin county the jury returned a verdict of guilty of assault with intent to kill.

Judgment in each case was entered accordingly, and defendant assigns various errors, the first of which relates to the overruling of the application for a change of venue in case No. 31226. In support of the application defendant submitted 9 affidavits identical in terms, and which obviously had been prepared with blank spaces for affiants' names, occupations, and addresses ready to be filled in upon obtaining the signatures of whatever persons were complaisant enough to sign them. This showing was supplemented by excerpts from newspapers published in Lawrence and Kansas City purporting to give the facts of the shooting of defendant's wife and brother-in-law, of their slow progress towards recovery in a hospital, and of defendant's flight and capture. This showing was also supplemented by the affidavit of one of defendant's attorneys who averred that he had talked with a great many citizens residing in different parts of the county and: "With two exceptions all of said persons expressed their opinion that they did not believe that the defendant could have a fair and impartial trial in this cause in Douglas county, Kansas, because of the prejudice of the citizens thereof. That said persons further stated that they believed that the citizens of Douglas county, Kansas, have already made up their minds that the defendant, George F. Taylor, is guilty as charged in this cause and further that there is considerable feeling in Douglas county, Kansas, against said defendant. This affiant has talked to several female citizens of this county, all of whom stated that they believed and that they thought every other citizen of the county believed that said defendant was guilty and that they did not believe that a change of venue should be granted, for the reason that said George F. Taylor should be sent to the penitentiary and that he should be given no chance to escape by reason of said cause being transferred to another county."

...