State v. Zakoura

• Decision Date: 08 May 1937
• Docket Number: 33282.
• Citation: 68 P.2d 11,145 Kan. 804
• Parties: STATE v. ZAKOURA. [*]
• Court: Kansas Supreme Court

68 P.2d 11

145 Kan. 804

STATE v. ZAKOURA. ^[*]

No. 33282.

Supreme Court of Kansas

May 8, 1937

Syllabus by the Court.

Finding of trial court on qualification of juror in murder prosecution on conflicting evidence offered on motion for new trial predicated on disqualification of juror on ground that prior to trial he had expressed wish to be juror, and stated that he believed defendant guilty and would vote to hang him held conclusive on appeal.

Written evidence offered in support of motion for new trial in homicide prosecution on ground that juror was disqualified held insufficient to establish disqualification of juror on ground that he had expressed opinion of defendant's guilt prior to trial.

In murder prosecution, argument of prosecution asking jury to think of grave in cemetery and sorrowing sister and relatives of deceased held not reversible error.

Evidence in murder prosecution held not to require instruction on law of manslaughter.

In murder prosecution, objection to jury's viewing of premises as authorized by statute on ground that it was highly prejudicial and inflammatory, and did not tend to elucidate act of killing, and would make witnesses out of jurors, and that request for view in presence of jury was improper, and erroneous, held properly overruled as argumentative and unsound (Gen.St.1935, 62-1818).

In murder prosecution, denial of defendant's request to accompany jury on view of premises under statute, which was made after jury had returned from view, held not error, since presence of defendant was not required and any right to attend view was waived by failure to make timely request (Gen.St.1935, 62-1818).

In murder prosecution, cross-examination of defendant and his character witnesses held not error as permitting state to show specific acts on part of defendant to tear down defendant's character.

In murder prosecution, restriction of cross-examination of witness for state held not error, in absence of showing in record of reason for protracted cross-examination to which witness was subjected, or that witness was hostile especially where testimony of witness on direct favored defendant's theory.

In murder prosecution, statement sworn to by defendant before notary and made in response to questions put to him by county attorney and sheriff held admissible, in absence of showing of coercion, constraint, or promise of leniency, which induced defendant to make statements.

In an appeal from a judgment and sentence upon a verdict of guilty of murder in the first degree, the record examined and held:

(1) Error based on the alleged disqualification of a juror on the ground that prior to the trial he had expressed a wish to be a juror, that he believed defendant guilty, and would vote to hang him, is not sustained.

(2) In so far as the question of the challenged juror's qualifications was determinable from both oral and written evidence, the trial court's decision is conclusive on appeal. In so far as this question is determinable upon the written evidence, the challenge of the juror's qualifications is not sustained.

(3) Error based upon the arguments of counsel for the state is not sustained.

(4) Error based on the trial court's refusal to instruct the jury on the law of manslaughter is not sustained.

(5) The jury's view of the premises where the crime was committed was in accordance with statutory procedure and approved practice, and no error can be predicated on the fact that defendant did not accompany the jury.

(6) The denial of defendant's belated request to accompany the jury on a view of the premises (which would have required the jury to make a second view) was not error.

(7) Complaint that the trial court permitted the state to show specific acts of the defendant "to tear down" his character is not sustained.

(8) Error based upon restriction of the cross-examination of a witness for the state is not sustained.

(9) There being no showing of coercion, constraint, or promise of leniency to induce defendant to make a statement touching the homicide, his statement sworn to by him before a notary and made in response to questions put to him by the county attorney and the sheriff was properly admitted in evidence.

(10) The verdict, judgment, and sentence considered, and no error discerned therein.

Appeal from District Court, Miami County; Garfield A. Roberds Judge.

Albert M. Zakoura was convicted of murder, and he appeals.

Karl V. Shawver, of Paola, and Sam. K. Wasaff, of San Antonio, Tex., for appellant.

Clarence V. Beck, Atty. Gen., C. Glenn Morris, Asst. Atty. Gen., Oliver D. Rinehart, Co. Atty., Robert E. Coughlin, Edward H. Coughlin, and Andrew Joyce, all of Paola, for the State.

DAWSON Chief Justice.

This is an appeal by Albert M. Zakoura, who was convicted and sentenced to hang for the murder of his wife in the city of Paola on Sunday morning, December 1, 1935.

Before considering the errors urged against the judgment, it will be helpful to an understanding of the case to state certain facts antecedent to the tragedy which are contained in the record.

The defendant and his wife were married in Osawatomie in March, 1921. He was then twenty years old; his wife was about sixteen years old. They resided for a time in Osawatomie and then removed to Oklahoma. They returned to Osawatomie, and afterwards sojourned for a time successively in Wichita, Amarillo, and Borger, Tex. Again they returned to Osawatomie and later took up their abode in Hollis, Okl. In the various localities in which this wandering couple sojourned, defendant worked alternately as a clerk in a store, as a laborer in a railway shop, and as the operator of a café.

In 1935, Mrs. Zakoura, defendant's wife, acquired a business building in Poala and considerable other property by devise or inheritance from a kinsman. There was a second story in the front half of this building which consisted of a sitting room, two bedrooms, and a bathroom. In August, 1935, defendant and his wife and their ten year old daughter took up their abode in these living quarters of this building, and they equipped and opened a restaurant on the ground floor.

The long way of the building was north and south. It had a recessed front entrance on the north. At the entrance were two doors, one leading into the restaurant, the other leading upstairs to the family abode.

In the restaurant there were serving shelves along the west wall, and lunch counters with stools facing the serving shelves with a passage between. On the east side of the room were some booths and dining tables. Somewhat more than half the area of the downstairs was thus occupied by the public part of the restaurant. Toward the rear was a partition, behind which was the kitchen with the usual equipment. In the partition was a serving window and on its west side was a doorway which permitted easy access between kitchen and restaurant.

In the restaurant proper but back near the serving window was a skylight set in the roof of the single story part of the building, the two-story part constituting the living quarters of the Zakoura family being in the north or front part of the building. There were three windows on the south side of the living quarters, one of them being the family's bathroom window.

Alongside this building on the east was another two-story building, in which, among other arrangements was a room which served as the lodging quarters of a single man named Harry Cochran who ate most of his meals in the Zakoura restaurant. In Cochran's room was a window facing west, at a short distance from the bathroom window of the Zakoura family.

In conducting the restaurant, defendant's principal work was that of cook; his wife's main job was that of cashier; three girls served as waitresses, one of whom was Frances Officer. Another employee, Harold Record, served chiefly as dishwasher. The restaurant business required the keeping of late hours, sometimes as late as 1 o'clock a. m. or even later; consequently Mrs. Zakoura was accustomed to sleep until 10 o'clock in the forenoon.

On Sunday morning, December 1, 1935, Frances Officer opened the restaurant about 7 o'clock, and awakened the defendant. He came downstairs and set about the preparation of breakfast. About 8 o'clock he engaged Miss Officer in conversation, and asked her if she had noticed that his wife was treating Harry Cochran "nicer" than she did the other customers. She answered in the negative, and added that "Esther," Mrs. Zakoura, was always congenial and pleasant to all their customers. Defendant replied insisting that his wife was more friendly to Cochran than to other customers, and that "things showed bad" and "he wasn't going to stand for it." He added that he did not want to make a fool of himself; and asked Miss Officer what she would do in his place. She advised him to speak to his wife.

Coming now to the more immediate incidents of the tragedy, the evidence on behalf of the State tended to show that about 9:30 a. m. Harry Cochran came into the restaurant and ordered his breakfast. Defendant prepared it and when it was served he sent Harold Record, the dishwasher, to a neighboring grocery on an errand. Then defendant came from the kitchen carrying a revolver, and confronted Cochran. There was only the counter and a distance of 4 1/2 feet between them. Defendant demanded to know what Cochran meant by fooling around with his wife. Cochran replied, "Why, Al!" Defendant forthwith shot Cochran. The latter turned off his stool, stumbled toward the front door, and fell to the floor. Defendant then hastened upstairs to his wife's bedroom shot her three times, laid down the revolver on a dresser, returned downstairs, lit a cigarette, and awaited the arrival of the police...