State v. Turner

Decision Date06 June 1964
Docket NumberNo. 43651,43651
Citation193 Kan. 189,392 P.2d 863
PartiesSTATE of Kansas, Appellee, v. Alvin R. TURNER, Appellant.
CourtKansas Supreme Court

Syllabus by the Court

1. The record presented on appeal from a conviction and sentence in a criminal action is examined, and it is held, that the appellant has failed to make it affirmatively appear any error has been committed by the trial court to the prejudice of the appellant's rights.

2. Before a court is justified in sustaining an application for a change of venue (G.S.1949, 62-1318 through 62-1321) on account of the prejudice of the inhabitants of the county, it must affirmatively appear from the showing that there is such a feeling and prejudice pervading the community as will be reasonably certain to prevent a fair and impartial trial.

3. The fact that a number of the inhabitants of the county may be prejudiced against the defendant will not justify a change of venue of the ground of local prejudice if the remainder of the people of the county are free from prejudice and the defendant may still have a fair trial within the county.

4. A change of venue on account of the prejudice of the inhabitants of the county against the defendant should not be granted unless it is made to appear to the satisfaction of the court that the defendant cannot have a fair trial in such county on account of such prejudice.

5. The facts that the arrest of one charged with crime and the offense of which he is charged have received an extensive amount of publicity in many newspapers, local and metropolitan, which are distributed and read throughout the county or judicial district, and the matter generally discussed by the inhabitants and opinions freely expressed concerning the same, without more, are insufficient as a matter of law to sustain an order for the change of venue.

6. An information in the ordinary form, charging that the killing was done with malice aforethought, deliberation, and premeditation, is sufficient to sustain a conviction of murder in the first degree committed in the perpetration of a burglary or robbery under G.S.1949, 21-401, which makes all murder committed in perpetration of burglary or robbery murder in the first degree, and since such information would be sufficient to charge the principal, it is sufficient to charge one who aided and abetted in the burglary or robbery.

7. Evidence of a conspiracy involving several persons to commit the crime for which one is separately charged in an indictment or information is admissible to show a conspiracy between the one separately charged and the others, although the others are not joined in the indictment or information and no conspiracy is charged therein.

8. Oral admissions or written statements against interest in criminal prosecutions are properly admitted as evidence if fully made without inducement or duress, or brought about by some other improper means, and such admissions or written statements do not contravene either Section 10 of the Bill of Rights of our state constitution or the due process clause of the federal constitution.

9. Generally physical objects which constitute a portion of a transaction or which serve to unfold or explain it may be exhibited in evidence whenever the transaction is under judicial investigation.

10. Unless an instruction to which an objection is made is a clear and prejudical misstatement of the law, it can be reviewed only when other instructions, which may or may not modify its intent and effect, are made a part of the record, in order that all may be examined together.

11. Where an information charges murder in the first degree under the provisions of G.S.1949, 21-401, it does not include being an accessory after the fact (G.S.1949, 21-106), which is a separate and distinct offense, and the court properly refused to give an instruction on an offense not included in the information.

David R. Gilman, Overland Park, argued the cause, and Myles C. Stevens, Kansas City, was with him on the briefs for appellant.

James W. Bouska and Bernis G. Terry, Asst. County Attys., argued the cause, and William M. Ferguson, Atty. Gen., and Hugh H. Kreamer, County Atty., were with them on the brief for appellee.

WERTZ, Justice.

Alvin R. Turner, appellant, hereinafter referred to as defendant, was duly charged by an information in the district court of Johnson county with the crime of murder in the first degree in shooting and killing John R. Keach. Upon a trial, the jury found the defendant guilty as charged and fixed the punishment at life imprisonment. From an order overruling his motion for a new trial, defendant has appealed and contends the court erred in: (1) overruling his motion for a change of venue; (2) overruling his motion to quash the information; (3) admitting specified evidence; (4) admitting into evidence written statements made by defendant which defendant maintains were involuntarily given; (5) admitting into evidence two photographs taken of the deceased at the place of the murder; and (6) failing to properly instruct the jury.

While the trial of the instant case lasted approximately nine days, and the abstract of record here consumes over 200 printed pages, only so much of the facts as are pertinent to the issues involved will be related.

One Roy Jack Loren, Jr., hereinafter referred to as Loren, and the defendant, Turner, were friends. Defendant owned a Cadillac automobile. About 6:30 p. m. on December 11, 1962, Loren told defendant he had a place 'to go and look over' and asked defendant to go with him. The two men got into defendant's automobile and drove to a gasoline station where defendant purchased gasoline for the car. Loren then took the wheel, as he knew where he was going, and defendant slid over to the right side of the front seat. They drove through the Plaza area of Kansas City, Missouri, to the highway, then down the highway quite some distance, turned onto a side street leading past several large homes in Johnson county, Kansas, stopped the car, and put on the parking lights. Loren told the defendant to take the car and drive around several blocks, come back, and by that time he would be ready to go. Loren jumped out of the car and headed towards the Keach home. Defendant drove the car around several blocks, came back to the Keach home, pulled into the driveway, then backed the car out, turned around, parked in front of the Keach home, and waited for Loren. While in the Keach home Loren shot and killed Keach, then pilfered the house for loot, and came out of the house with a bushel basket containing many different items. Defendant stated Loren was in the house a good half hour and made three different trips from the house to the car. On his last trip he brought out a television set, a picture machine and a small box. Loren put all of the items in the back of the defendant's car. They then returned to Kansas City where they contacted a man, who later proved to be a Mr. Coleman, in an attempt to sell the television set. From Coleman's house they then went to Loren's mother's residence where all of the items were unloaded from the car, carried into the house and placed in a bedroom. At this point defendant asked Loren what had happened at the Keach home and Loren replied that Keach was dead.

The next day Loren took the television set to Coleman's house, left it, and said he would be back to collect $40, the sale price agreed on for the set. The following day defendant went to Coleman's home to collect the $40, but Coleman refused to pay him. Loren, who was sitting in defendant's automobile that was parked down the street, was so advised by defendant, and Loren himself then went to Coleman's home for the purpose of collecting the money.

At the time of defendant's arrest on December 14, 1962, the murder weapon was found in his possession. Defendant was granted a preliminary hearing and bound over to the district court for trial for the offense of murder in the first degree. An information charging the defendant with murder in the first degree was filed in the district court on January 29, 1963, and competent and able counsel were appointed to represent the defendant throughout the proceedings in that court and on appeal to this court.

Turning now to the questions argued on this appeal, defendant first contends the court erred in refusing a change of venue. The application was filed pursuant to G.S.1949, 62-1318 and 62-1319. In his application for change of venue defendant alleged prejudice by county inhabitants against him to the extent he could not receive a fair trial. In support of his motion defendant filed twenty-one affidavits, identical in wording, which stated each affiant knew the deceased or was familiar with his reputation in the community, had read and seen newspaper accounts and photographs concerning the murder, had formed an opinion as to the guilt of the defendant, and did not feel he could judge defendant's guilt or innocence fairly or impartially were he called upon to do so.

The state filed twenty-four counter affidavits, identical in wording, stating that since the arrest of defendant affiant had heard no persons residing in the county say the defendant was not entitled to a fair trial; that from the conversations each affiant had with other persons he had heard nothing to indicate that anyone was biased or prejudiced against the defendant or that defendant could not have a fair trial in Johnson county; and that the articles in the newspapers had not prejudiced him against the defendant.

The sheriff filed an additional affidavit stating there had been few inquiries by any person pertaining to the whereabouts of the defendant and there had been no indications by any person that any violence was intended to the person of the defendant during his confinement in the Johnson county jail; that there had been no disturbance by any person or persons outside or in the vicinity of the jail while the defendant was in...

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  • State v. Van Pham, s. 55179
    • United States
    • United States State Supreme Court of Kansas
    • January 13, 1984
    ...unlawful venture and wilfully participate in it as he would in something he wishes to bring about or to make succeed." State v. Turner, 193 Kan. 189, 392 P.2d 863 (1964), announced all participants in a crime were equally guilty, regardless of the extent of their participation. 193 Kan. at ......
  • State v. Foy, 49250
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    • United States State Supreme Court of Kansas
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    ...is sufficient to sustain a conviction of murder in the first degree committed in the perpetration of a burglary. (Following State v. Turner, 193 Kan. 189, 392 P.2d 863 (1964).) 3. The felony-murder doctrine is not applicable in cases of felonious assault resulting in death because the assau......
  • State v. McCowan, 50811
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    • United States State Supreme Court of Kansas
    • December 1, 1979
    ...to sustain a conviction of murder in the first degree committed in the perpetration of a robbery or burglary. (State v. Turner, 193 Kan. 189, 392 P.2d 863 (1964).) Therefore, the fact that felony murder was not charged in the information does not preclude an instruction where evidence suppo......
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    • July 12, 2013
    ...536 P.2d 1395 (1975) (all participants in crime equally guilty without regard to extent of their participation); State v. Turner, 193 Kan. 189, 196, 392 P.2d 863 (1964) (all participants in the crime equally guilty); State v. Wolkow, 110 Kan. 722, 726, 205 P. 639 (1922) (out-of-state aider ......
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