State v. Van Wormer
| Decision Date | 06 July 1918 |
| Docket Number | 21255 |
| Citation | 173 P. 1076,103 Kan. 309 |
| Parties | STATE v. VAN WORMER. |
| Court | Kansas Supreme Court |
In a prosecution for a homicide which resulted in a conviction of murder in the first degree, the court instructed the jury that, in order to convict, they must find, in addition to the other elements constituting that offense, that the defendant killed the sheriff while he was resisting arrest by him under a warrant charging a felony. Held, that under the conditions shown the plea of self–defense was not available to the defendant if he killed the sheriff while resisting arrest, and inasmuch as the verdict necessarily implied a finding (if the instructions were followed) that such was the case, the omission to instruct upon self–defense was not prejudicial, unless upon the theory that by reason thereof the jury may have been led to disregard the instruction referred to.
Held, that in such a case the omission to instruct upon self–defense, and upon second degree murder and manslaughter, does not require a reversal because upon the whole record the verdict appears to be based upon satisfying evidence, and there seems to be no substantial probability that the jury acted in disregard of the instructions given. The fact that a constable of the same county had already undertaken to take the defendant in custody on a charge of disturbing the peace, and to deputize two bystanders to guard and protect him, did not affect the right of the sheriff to arrest him, even if the conduct of the constable and his assistants was in good faith, and the evidence hardly leaves a doubt that it was collusive.
In such a case it is not error to instruct that: Such instruction does not negative the right to resist the use of undue force by the officer; and under the evidence in this case, it does not seem likely that the jury so interpreted it.
The statute (Gen. St. 1915, § 6744), authorizing notaries public to “administer oaths pertaining to all matters wherein an oath is required,” qualifies them to take the affidavit in verification of an information in a criminal case.
Upon the hearing of a motion to quash a jury panel in a felony case, evidence of the county clerk was used which was taken at his house on account of his sickness, the defendant not being present. The attorneys for the defendant were invited to attend the taking of the testimony, but declined. No request to be allowed to be present was made in behalf of the defendant, nor was any objection made to the proceeding until after the testimony had been read in evidence, and argument on the motion had been invited by the court. Held, that the defendant’s rights to be present at the taking of the testimony were waived.
A motion for a change of venue on the ground of prejudice of the judge held to have been properly overruled.
A stipulation was made by the county attorney for the taking of depositions in behalf of the defendant in a murder case, a waiver of the regular procedure being included. An attorney designated by the Attorney General to conduct the prosecution gave notice that, while he would try to be represented at the taking of the depositions, if he failed in that, he would challenge the validity of the stipulation, on the ground that it was collusive and unauthorized. The depositions were not taken, the defendant’s counsel giving as a reason that they could not be filed one clear day before the trial and therefore could not be used except by agreement. A continuance was asked on behalf of the defendant to enable him to procure the evidence. Held, that it was a fair question for the trial court whether it should be granted, and its refusal did not constitute error.
Rulings of the trial court sustaining the competency of challenged jurors held not to have been erroneous.
Rulings admitting evidence held not to have constituted reversible error.
Rulings excluding evidence held not to have been prejudicial.
The argument of counsel for the prosecution held not to have so far transgressed the proprieties as to require a new trial.
Appeal from District Court, Hamilton County.
Don Van Wormer was convicted of murder in the first degree, and he appeals. Affirmed.
S. B. Amidon, of Wichita, L. A. Madison, of Dodge City, Samuel Yaggy, of Syracuse, F. S. Macy, of Liberal, and S. A. Buckland, of Wichita, for appellant.
Mayo Thomas, of Elkhart, H. E. Walter, of Syracuse, G. Porter Craddock, of Richfield, S. M. Brewster, Atty. Gen., John W. Davis, of Greensburg, and George Getty, of Syracuse, for the State.
On July 22, 1916, at Rolla, in Morton county, Don Van Wormer shot and killed Martin C. Moore, the sheriff. He was convicted of murder in the first degree, and appeals.
At about 6 o’clock in the afternoon of the day of the homicide the defendant was in his real estate office, which was also his residence, with several friends. The sheriff came to the office with the purpose (according to his own later declaration) of arresting him upon the charge of having wounded one Lewis Perkins by shooting him, Perkins appearing to have been shot in the face shortly before by some one, probably the defendant, but his injury was not severe, and was doubtless accidental. However, this is not important in the present case. A conversation then took place between the defendant and the sheriff, which is variously reported, but according to witnesses produced by the defendant, who were manifestly very friendly to him, he asked the sheriff if he had a warrant for him, and, on receiving a negative answer, ordered him to go on away, telling him to get a warrant if he wanted to arrest him, and saying that he was going to take a shot at his garage, which was opposite the door where the sheriff stood, so that he was nearly in line with it. The defendant almost immediately fired through the screen door with a shotgun, the charge striking the garage. The sheriff then went to a justice of the peace, procured a warrant, charging the defendant with an assault upon himself with intent to kill, and, returning to the defendant’s office, told him he had a warrant for his arrest. The defendant asked to see it, and the sheriff showed it to him. There is a direct conflict as to what then took place. One of the state’s witnesses, the county’s representative in the Legislature, whose testimony was corroborated in all essential particulars by others, testified, in substance, that the defendant resisted arrest, and that his friends aided him, a violent scuffle ensuing; that the sheriff succeeded in getting the defendant through the door and out of the building, when he wrenched loose; that blows were exchanged and another scuffle took place, the defendant’s friends assisting him and striking the sheriff; that the defendant again got away and ran back into the house, procured the shotgun, and fired the fatal shot through the doorway; that the sheriff in the meantime, having been released by his assailants, had gone to a car near by, and returned with a revolver in his hand, and was standing near the door when shot.
The version of the affair undertaken to be given by the defendant’s witnesses (including his friends who are charged with aiding him in resisting the officer), in its most favorable form for him (the state plausibly contending that it was much weakened upon cross-examination), was to this effect: When the sheriff told him he had a warrant for him, the defendant asked him to read it. He answered that he did not have to, at the same time producing the warrant, which the defendant took from his hand. As the defendant was reading the warrant, stepping back while he was doing so, the sheriff struck him a violent blow in the face, and followed it up with others. The defendant did not resist arrest, and his friends interfered no further than to protest against the sheriff’s unnecessary violence.
1. Many assignments of error are made. That which we regard as the most important grows out of the fact that the court refused to give any instructions with regard to the law of self-defense. There is little difference of judicial opinion with respect to the availability of self-defense as a plea in behalf of one who kills an officer who is endeavoring to arrest him. If the officer is authorized to make the arrest and the accused knows it as was clearly the case here, and proceeds in a proper manner, no such issue can arise. If the officer, however, although armed with a sufficient warrant uses unnecessary and unreasonable force, or wanton violence, this may be repelled under the ordinary rules of self-defense, even to the extent of taking life; but acts done in resistance of the arrest itself cannot be so justified under any conditions present in this case, although the distinction may not always have been noted. 13 R. C. L. 867; 5 C. J. 750; 21 Cyc. 803; notes, 33 L. R. A. (N. S.) 143; 84 Am. St. Rep. 679; 4 Ann. Cas. 844. Some courts go farther than others in applying the rule so as to protect the rights of the officer (see, for instance, State v. Durham, 141 N.C. 741, 53 S.E. 720, 5 L. R. A. [N. S.] 1016), but there is a substantial agreement as to the principle by which cases of this kind are controlled, although there is some variation in the language used expressing it. It is held in Kentucky that a plea of self-defense is tenable where the defendant...
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