State v. Welch
| Decision Date | 10 July 1926 |
| Docket Number | 25,109 |
| Citation | 247 P. 1053,121 Kan. 369 |
| Parties | THE STATE OF KANSAS, Appellee, v. L. E. WELCH, Appellant |
| Court | Kansas Supreme Court |
Decided July, 1926.
Appeal from Wyandotte district court, division No. 3; WILLIAM H MCCAMISH, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. CRIMINAL LAW--Change of Venue--Grounds--Local Prejudice. The proceedings considered in a prosecution for robbery in the first degree, and held, a motion for change of venue, on the ground of prejudice against defendant in the minds of the inhabitants of the county which would prevent a fair trial in the county, was properly denied.
2. JURY--Examination of Jurors--Propounding Question of General Nature to Group. A request by the court that counsel for defendant facilitate progress in examination of jurors to determine their qualifications, by propounding questions of a general nature to all the jurors, or to groups of them, or at least to more than one juror at a time, was reasonable and proper.
3. ROBBERY--Trial--Proceedings Generally. Various assignments of error relating to proceedings at the trial considered, and held to be without merit.
4. NEW TRIAL--Newly Discovered Evidence. Evidence presented as having been discovered after the appeal was taken, perused as a matter of favor to defendant, and found to confirm the verdict of guilty.
James L. Hogin and Roy R. Hubbard, both of Kansas City, for the appellant.
Charles B. Griffith, attorney-general, Roland Boynton, assistant attorney-general, and J. H. Brady, of Kansas City, for the appellee.
Defendant was convicted of robbery in the first degree, and appeals.
Defendant, who was a bootlegger of Kansas City, Kan., became associated with one of the organized bands of outlaws which infested Kansas City, Kan., and Kansas City, Mo., in the spring and summer of 1922. On July 22, Joe T. Howard's cigar store was robbed of $ 2,072 by three men, who escaped from the scene of the crime in an automobile driven by a fourth man. The robbery was executed according to plans laid at defendant's home. Defendant had possession for some purpose of a Buick automobile, which was a stolen car. On the morning of July 22 he removed the license plate from the car, substituted for it another bearing the number 6500, and drove to a hotel in Kansas City, Mo., where he picked up one of the group. The other two were in a Ford sedan, and the two cars were driven to Thirteenth and Penn streets. There the two men in the Ford car left it, got into Welch's car, and Welch drove to the scene of the robbery. The persons in the car were defendant Welch, George Willis, Floyd Dudley, and Harry Downs. At Thirteenth and Penn streets, Willis was recognized by A. S. Green, who also noted the license number 6500 on the Buick car. The Ford sedan was left in front of Greenbaum Brothers' store, and J. W. Grady, who worked in the store, made a memorandum of the license number on the sedan. His attention was called to it by Green. On the way to Howard's store, defendant produced two .38-caliber pistols from under the seat, one of which was given to Willis and the other to Dudley. When they reached the vicinity of Howard's store, defendant stopped the car and remained in it, keeping the engine running, while the others went into the store and committed the robbery. While the robbery was in progress, a pistol and holster were taken from Willie Roher, who was in the store. Afterwards, when Willis' room was searched, the pistol was found in his possession. After completing the robbery, Willis, Dudley and Downs returned to the car, and as defendant drove it away some shots were fired. A bullet struck one of the rear tires of the automobile, but the tire did not blow out until Welch's garage was reached. Another bullet penetrated the back of the car. The course of the fleeing car was down Adams street. When it turned west on Osage avenue, which begins at Adams street, J. Kennedy, an employee of Wilson & Company, observed the car, which was traveling at a speed of thirty-five miles per hour. On learning of the robbery, Kennedy reported his observation of the car to the chief of police, and he afterwards identified Willis and defendant as occupants of the car. Following a circuitous route, defendant drove to his own home. There the money was divided. Two hundred dollars (ten per cent) was taken out and given to Willis for John M. Hagan, of Kansas City, Mo., the reputed "brains" of the gang. Welch was allowed a sum for repair of his car, and received approximately $ 500. Fred Stroth and Earl James came to Welch's house in a Cadillac car, and Willis, Dudley and Downs returned to Kansas City, Mo., with them. Defendant owned a Hudson car, which he had left with F. S. Beltz, who conducted an automobile repair shop. Defendant came for his Hudson car in a Buick car, which he left with Beltz. There was a bullet hole in the back of the car, plugged with a bolt. The police subsequently took possession of the Buick car. Willis and Dudley confessed, and, as witnesses for the state, told the whole story of the robbery at the trial.
Because of the abbreviated character of the abstract, the foregoing account may not be strictly accurate in some minor details, but it fairly represents the evidence on which the conviction rests. The defense was an alibi. Defendant slept until nearly noon the day of the robbery. The afternoon was to be devoted to a fishing trip to Bean lake with two men who came to defendant's house about 1:30 p. m., stayed about two hours, and went away without going fishing. The record does not disclose what became of the bait for the fishing trip.
For a considerable period of time, banks, business houses, and individuals of the city were preyed upon by the Hagan and other bandits almost at will. Before their depredations were checked, they had killed four men and had committed twenty-one robberies, netting approximately $ 100,000. The community became thoroughly aroused, and after a raid in which two police officers were killed, the president of the chamber of commerce called a mass meeting, which was attended by seven or eight hundred persons. The situation was fully discussed, and a resolution was adopted looking to organized effort to aid the city and county officers in their endeavor to run down the outlaws and bring them to justice. The Kansas City Kansan, the daily newspaper of the city, discussed the condition of affairs freely and vigorously in editorials, published interviews with citizens, and gave news accounts of occurrences. The arrest of the participants in the Howard robbery marked the beginning of the end of the reign of terror. The fact that Willis and Dudley confessed, that Welch's home had been searched and forged government labels for bonded whisky had been found there, and other activities of officials and persons acting with them in respect to Welch's implication in the Howard robbery, were published.
Defendant filed a motion for change of venue, supported by his own affidavit only. Attached to the motion were copies of the newspaper articles and interviews referred to, the call for the public meeting, and a report of its proceedings. The affidavit concluded as follows:
"That by reason of all the facts heretofore set out, the inhabitants of Kansas City and Wyandotte county, Kansas, have become and still are so prejudiced against your petitioner that a fair trial upon the charges filed against him cannot be had in said city and county, and that a change of venue should be granted to your petitioner to some other county than Wyandotte county."
The state filed no counter affidavits, and the motion was denied.
The statute which permits application to be made for change of venue on the ground the minds of the inhabitants of the county are so prejudiced against defendant that a fair trial cannot be had in the county, requires the petition to set forth the facts on which the application is based. (R. S 62-1321.) It is not enough that the petition state prejudice exists and a fair trial cannot be had. Specific facts and circumstances showing prejudice must be stated, and not conclusions. (State v. Knadler, 40 Kan. 359, 19 P. 923.) The portion of defendant's affidavit which has been quoted was a statement of his inference from the matter contained in the affidavit, and sufficiency of the application depended on the facts. (State v. Bassnett, 80 Kan. 392, 395, 102 P. 461.) The prejudice which will authorize...
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...deems it appropriate, even to speed up the process. State v. Lockett, 232 Kan. 317, 323, 654 P.2d 433 (1982) (citing State v. Welch, 121 Kan. 369, 374–75, 247 P. 1053 [1926] ). The court also has discretion when deciding whether voir dire questioning is improper because it does not concern ......
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...Prejudice can be shown only by specific facts and circumstances. State v. Lamb, 209 Kan. at 465, 497 P.2d 275, State v. Welch, 121 Kan. 369, 372, 247 P. 1053 (1926). Finally, we note Nelms' experience in voir dire supports the court's denial of a change of venue. A jury panel was passed for......
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