State v. Theus, 46049
| Citation | 485 P.2d 1327,207 Kan. 571 |
| Decision Date | 12 June 1971 |
| Docket Number | No. 46049,46049 |
| Parties | STATE of Kansas, Appellee, v. Tom Lee THEUS, Appellant. |
| Court | United States State Supreme Court of Kansas |
1. The weight and credibility of testimony is for the jury, and a verdict based on substantial competent evidence will not be disturbed on appellate review.
2. In counties to which K.S.A.1970 Supp. 43-135 through K.S.A. 43-147 are applicable, prospective jurors need not be drawn from the tax assessment rolls.
3. In a capital case a prospective juror whose conscientious scruples against the death penalty would prevent him from fairly determining the issue of guilt was properly execused for cause under former K.S.A. 62-1404.
4. Whether to exclude prospective witnesses from the courtroom prior to their testimony, and whether to make exceptions, is within the judicial discretion of a trial court in the absence of a showing of prejudice.
5. After trial and conviction it is too late to complain about irregularities in the issuance of the original warrant.
6. An unlawful arrest does not, by itself, deprive a court of jurisdiction to try an accused.
7. Where a new trial is sought on the basis of the recanting testimony of a prosecution witness, the weight to be given such testimony is for the trial judge passing on the motion for a new trial.
8. The record in a first degree murder case examined and it is held: No error.
Robert M. Brown, Topeka, argued the cause and was on the brief for appellant.
Gene M. Olander, County Atty., argued the cause, and Vern Miller, Atty. Gen., was with him on the brief for appellee.
FOTH, Commissioner.
Appellant was convicted by a jury of first degree murder and sentenced to life imprisonment in accordance with the jury's verdict. He appeals from the judgment of conviction and sentence, and from the court's order overruling his motion for a new trial, both entered March 11, 1970.
One of appellant's contentions here, as in the trial court, goes to the weight of the evidence. He claims that the state's evidence was insufficient to go to the jury, and his motion for discharge at the close of the state's case should therefore have been sustained. As a corollary, he urges that the verdict was contrary to the evidence.
This contention requires that we review briefly the state's case. In so doing, we bear in mind the well established propositions that it is the function of the jury, not of an appellate court, to weigh the evidence and pass upon the credibility of witnesses; and a verdict based on substantial competent evidence will not be disturbed on appellate review. State v. Lyon, 203 Kan. 78, 452 P.2d 838; State v. Wade, 203 Kan. 811, 457 P.2d 158, an cases cited therein.
Testimony adduced by the state indicates that on the fatal night, October 3, 1969, at about 8:30 p. m. the deceased, Gladys Freeman, arrived in the company of two female friends at an establishment known as the Thirteenth Street Tavern, located on the southeast corner of Thirteenth and Monroe streets in Topeka.
There are conflicts in the testimony concerning the many turbulent events of the evening, all of which need not be detailed here. The two friends who had accompanied the deceased to the tavern and her daughter who arrived later variously testified that on more than one occasion the appellant quarreled violently with the deceased; that he accused her of having $150 belonging to him; that he threatened to kill her if she didn't pay him the money forthwith; that he slapped her about the head and shoulders; that he waved a pistol in front of the tavern in a threatening manner; that he called her 'bitch' and repeated his threats to kill her on several occasions, the last time shortly before the fatal shot was fired.
Two bystanders, Mr. and Mrs. Roland Gray, arrived on the scene around 10:45 to 11:15 p. m., shortly before the shooting. They parked their car at the northeast corner of Thirteenth and Monroe, just north of the tavern. They each testified to an encounter between appellant and the deceased in front of the tavern in which appellant shook her and said something about $150; that she went back into the tavern and he shortly thereafter followed her; that they came out together and he told her to get into his car, a 1963 Cadillac which was parked in front of the tavern; that she did so, sitting in the passenger's seat; that appellant went back into the tavern for a few minutes and then returned to the driver's side of the car; that he shortly thereafter took something out of his pocket, extended his arm into the car, and a shot was fired.
Shortly before the shot there appeared on the scene one Billy Stevenson, also known as William McKinley Miller, Jr. He was observed by the Grays talking to the deceased while she was sitting in the car and appellant was in the tavern. Immediately after the shot he and appellant entered the car nd drove away. The Grays followed to the hospital.
Stevenson, testifying for the state, said he was present at the time the shot was fired but did not see it fired or see appellant with a gun; he had been talking to deceased while she was sitting in the car but turned and started to walk away when appellant approached; and that he heard the shot. He denied having a pistol in his possession at any time during the evening. More will be said of this aspect of his testimony later.
The deputy coroner testified that deceased died as a result of a bullet wound to the head. The bullet entered halfway between the root of the nose and the left eye and traveled toward the right side of the head in an upward and backward direction. (We note that this is consistent with relative positions of appellant and the deceased at the time of the shot, as related by the Grays.) From his examination he concluded the gun had been fired at fairly close range. The bullet was identified by a police expert as being from a .22 caliber gun.
From the foregoing abbreviated version of the state's evidence it is clear that there was ample testimony which, if believed by the jury, would warrant its verdict. The court below therefore did not err in overruling appellant's motion for discharge or in finding on his motion for new trial that the evidence was sufficient.
Prior to the voir dire appellant challenged the array of jurors, and alleges that the trial court erred in overruling his challenge. The basis of his attack is that the panel was selected by the judges of the district court from the Shawnee County voter registration lists, and not from the assessment rolls as he contends they should have been under K.S.A. 43-102. The answer to this contention requires a review of the legislative history of the methods of selecting jurors in this state.
G.S.1868, ch. 54, § 1, assigned the duty of selecting prospective jurors in every county to the county commissioners, who under § 2 were to employ the assessment roll of the previous year. This duty was transferred to the township trustees and the mayors of most incorporated cities by Laws 1876, ch. 104, § 1. The 1876 amendment has come down to us unchanged and now appears as K.S.A. 43-101. The 1868 direction that those officers use the assessment rolls of the preceding year as their source is now incorporated in K.S.A. 43-102.
However, in 1907 the legislature introduced a wholly new statutory method of selecting prospective jurors in counties having a population of over 100,000 (Laws 1907, ch. 232). This act now appears basically as K.S.A. 43-135 (as amended) through 43-147. The applicability of this act was amended to cover counties over 90,000 by Laws 1921, ch. 167, § 1, and again to those over 80,000 by Laws 1953, ch. 242, § 1. (Certain additional counties between 40,000 and 80,000 were brought under the act by Laws 1967, ch. 278, § 1, but they do not concern us here.)
The salient feature of the 1907 act applicable to the larger counties appeared in § 2, and now appears as K.S.A. 43-136:
(Emphasis supplied.)
It will be noted that this section speaks only of 'qualified jurors,' with no limitation on the sources from which their names must be derived. Were that source to be only the assessment roll, access to the books of the county clerk and treasurer would be sufficient, and access to 'such other records of the county as they may desire' would be superfluous. In Shawnee County voter registration lists are maintained by the county election commissioner, and are 'records of the county.' The distinction between the methods of selecting juries in the smaller as opposed to the larger counties was recognized in State v. Millhaubt, 144 Kan. 574, 61 P.2d 1356. Although that case involved a challenge to a grand jury rather than a petit jury, the court had occasion to...
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