State v. Woods

• Decision Date: 11 May 1963
• Docket Number: No. 43401,43401
• Citation: 381 P.2d 533,191 Kan. 433
• Parties: STATE of Kansas, Appellee, v. Gerald Lee WOODS, Appellant.
• Court: Kansas Supreme Court

Page 533

381 P.2d 533

191 Kan. 433

STATE of Kansas, Appellee, v. Gerald Lee WOODS, Appellant.

No. 43401.

Supreme Court of Kansas.

May 11, 1963.

Rehearing Denied June 15, 1963.

Syllabus by the Court

The claim of the appellant that Negroes had been excluded from the present jury was not established where one Negro had been called and excused because of health, and where others were subject to call.

Other trial matters are considered and found to contain no error.

Chester I. Lewis, Wichita, argued the cause and was on the briefs, for appellant.

Howard Hudson, Fort Scott, argued the cause, and William M. Ferguson, Atty. Gen., and Charles M. Warren, County Atty., were with him on the briefs, for appellee.

Walter B. Patterson and Frank O'Brien, Fort Scott, were on the briefs as amici curiae.

JACKSON, Justice.

On the evening of August 20, 1962, John D. Rogers had a date with Lola Stuteville, who was then eighteen years of age. They attended a movie in Fort Scott and then drove out to Gunn Park at the southwest edge of town. Rogers parked his Mercury sedan north of the south shelter house in the park. Rogers and Lola were sitting in the front seat smoking and listening to the radio and had been parked only about five minutes when Lola heard footsteps on her side of the car. Three of four figures stood near the car. Lola screamed. Rogers on looking closely could see that they were colored men. He criticized them for sneaking up and scaring them. They asked for money and cigarettes. He had no money but gave them cigarettes. He then noticed that there were about three or more on his side of the car also. He then attempted to start his car but they grabbed his arm and prevented him from doing so.

One of the Negroes on Lola's side of the car opened the door and sat down in the seat beside her. Rogers was pulled out of his seat on the driver's side and another one of them got into the seat on the other side of Lola. Lola, badly frightened, jumped over the back of the front seat and out of the car on the driver's side, ran up to Rogers and held on to his arm.

There is no reason to go into detail of all that occurred, but they attempted to make Rogers and Lola have intercourse in the back seat of the car. When this failed, they took Lola and Rogers to the shelter house and attempted to force them to have intercourse on the table. After about five minutes, Roger was pulled away and they began taking turns raping Lola. During this time she was raped ten or twelve times.

Gerald Lee Woods was the first of the boys to be tried. The appeal here is apt to be followed in the other cases. It might be said that appellant's counsel has brought into the picture almost every objection possible.

The appellant first raises the question of the denial of a continuance. In the case at bar, defendant was first charged only with the crime of rape on August 23, 1962. On August 27, he was charged with kidnaping in the first degree as well as with forcible rape. Within thirty-two days after his arrest, the trial date of the defendant had been set. The fact that defendant's counsel lived in Wichita was not a matter which could be taken into consideration in finding that he was not ready for trial. As far as the record would indicate, counsel for the defendant was entirely ready and most alert in making every point for his defendant.

But while appellant argues that he needed more time in which to prepare his case, we would rather think that had there been any delay, counsel would have been the first to argue that his defendant was entitled to a speedy trial. We find no abuse of discretion in compelling defendant to go to trial at the time the case was set. State v. Sweet, 101 Kan. 746, 168 P. 1112; State v. Johnson, 70 Kan. 861, 79 P. 732; State v. Wiswell, 128 Kan. 659, 280 P. 780, Syl. 1; and see State v. Badgley, 140 Kan. 349, 37 P.2d 16.

Not to overlook anything, it is then contended that defendant was entitled to bail. Section 9 of our own Bill of Rights to the state constitution reads as follows: 'All persons shall be bailable by sufficient sureties except for capital offenses, where proof is evident or the presumption great. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.' First degree kidnaping is a capital offense and the jury convicted the defendant although they did not assess the death penalty. It would seem clear that the presumption was great and the proof evident.

The appellant filed a motion for change of venue and argues strongly that feelings ran high against the defendants in the town. Notice also that the affidavits and motion filed asked that the case be removed from the district as well as from the county since the application was evidently filed under G.S.1949, 62-1319 and not under G.S.1949, 62-1318. It should also be noted that the application was not made during the term of defendant's arraignment under provision of section 62-1324 and should not have been considered without an additional affidavit under section 62-1325. Needless to say, there were no affidavits showing that the defendant could not receive a fair trial in Linn or Miami county, which counties are a part of the same district with Bourbon county of which Fort Scott is the county seat. The state did file an affidavit showing that a fair trial could be had in Linn county. Moreover, there were a number of affidavits taking issue with the ones filed by the defendant. See section 62-1321. The trial court took the question seriously, passed upon it and found that there existed no serious threat of violence or feeling against the defendants in general and that a fair trial could be had in Bourbon county. We know of no reason why the court should be reversed on this holding.

The state cites the case of State v. Parmenter, 70 Kan. 513, 79 P. 123, which is in point on the matter, and which came from the same county.

The defendant next makes a strong argument to show that the jury which tried the defendant was not impartial because of the fact that it was claimed no Negro had sat on a jury in Bourbon county since 1936, citing many cases since Bush v. Commonwealth of Kentucky, 107 U.S. 110, 1 S.Ct. 625, 27 L.Ed. 354.

In order to prove discrimination, defendant introduced Exhibit 1, which was an excerpt from the 1950 and 1960 U.S. census reports prepared by an official state agency, the Kansas Commission on Civil Rights. This exhibit shows that the total population of Bourbon county for the year 1950 was 19,153, of which number 18,478 were white and 675 non-white, or 3.5%. Of the 675 non-whites, 661 or 3.45 were Negroes.

While the state attacks this showing as not being an official document and actually of no worth, it agrees to assume that the figures are correct. But the state attacks the exhibit mainly on the ground that there is no showing of how many of the negroes were between the ages of twenty-one and sixty-five and therefore eligible for jury duty. While it is said in the briefs that all Negroes in the county live in Fort Scott, that would not appear to be accurate as to the census figures.

It was further shown that often no jury is called during an entire term of court.

After full consideration, the trial court gave the following ruling:

'The Court: The figures that were submitted in Defendant's Exhibit Number 1 show the 1960 population of the county was 16,090 and the Negro population of 582, and non-white population of 3.7 of which 582 are Negro and fifteen other races, or a Negro population of the county of approximately 3.6 per cent. That would tie in with Mr. Owen's testimony. As I recall, he said there were some three or four hundred votes at the general election that were Negro votes and that the Negro population as shown in 1950 is 661. In 1960 it is 582, showing a decline, not quite as large proportionally as the decline in the population of the county. The non-white population is shown as 3.5 percent in 1950 and 3.7 in 1960. At any rate, gentlemen, the problem we have here is not whether or not there are Negroes serving on the jury selected to try the case, but whether or not Negroes as a separate class are being arbitrarily discriminated against in not having their names picked for jury service. The problem is to have jury lists drawn from the proportions that are drawn strictly by lot and by chance and not by design. Of the one hundred thirty or forty jurors who...