State v. Owen

176 P.2d 564, 162 Kan. 255, 1947 Kan. LEXIS 314

• Court: Supreme Court of Kansas
• Decided: January 25, 1947
• Docket: No. 36,444
• Status: Published

Opinions

The opinion of the court was delivered by

Wbdell, J.:

This is an appeal by the defendant from a conviction of murder in the second degree.

The charge was that appellant committed the murder of one Roy Meredith Cole by means of a firearm, to wit, a shotgun. This is the second appearance of the case in this court. (State v. Owen, 161 Kan. 361,168 P. 2d 917.) Following our opinion on the first appeal the appellant, upon request, was given leave to file an amended abstract in order to show he had filed a motion for a new trial. Having made that showing here this court allowed a rehearing. In their former brief and oral argument before this court counsel for appellant claimed certain errors including the admission of testimony and misconduct of the county attorney on cross-examination of appellant and in his argument to the jury. The motion for a new trial discloses alleged misconduct of the county attorney was not included as a ground for a new trial.

Counsel for appellant who argued the case here frankly conceded the only contention he was now making was that the trial court erroneously admitted in the state’s case in chief, over his objection, evidence of appellant’s conviction of the'murder of a woman with a revolver twenty-eight years previously. Appellant’s counsel objected to the testimony when offered by the state in its case in chief on the grounds (1) it was incompetent, irrelevant and immaterial and highly prejudicial because the offenses were not similar; and (2) the testimony was incompetent in the state’s case in chief in any event and could be introduced only on cross-examination of appellant to impeach his credibility in the event appellant testified in his own defense. In the brief it is, however, also asserted the instruction to the jury touching the. purpose for which evidence of the former offense could be considered was erroneous for the reason it improperly included the word “motive.”

On the other hand, counsel for appellee, 'in substance, contend (1) the jury was fully informed concerning the previous offense by counsel for appellant on the voir dire examination; the jurors were individually and collectively interrogated relative to whether they would permit the previous conviction to prejudice them in this case; they uniformly stated they would not and appellant did not exhaust his jury challenges; (2) aside from the foregoing facts the evidence was competent and properly admitted in the state’s case in chief for the limited purpose stated in the court’s instruction; (3) appellant took the witness stand and evidence of the former conviction and the manner in which that offense was committed was admitted on his cross-examination without objection; (4) appellant is not entitled to a new trial on the ground the jury was prejudiced; and (5) the instruction was in conformity with the established law of , this state. " .

Appellant did not deny that he shot Cole with a twelve-gauge, single-barrel shotgun as charged, but contended he did so in self-defense. Cole died immediately with the result that his version of the shooting is lacking. Appellant was the only eye-witness to the shooting. There was, however, evidence of other witnesses that Cole had threatened to take appellant’s life. Appellant’s own testimony, if believed, was ample to establish the claim he shot Cole in self-defense. On the other hand, the sheriff, of Sedgwick county, appellee’s witness, testified appellant told him, after the shooting of Cole, that he (appellant) had decided two weeks previously to put an end to all this and had borrowed the shotgun used in the killing for that purpose. This was denied by appellant, and, of course, joined a factual issue on the subject of self-defense which was for the determination of the jury.

Since appellant does not contend there was no competent evidence to support the verdict of guilty only a brief general statement of the facts out of which the controversy arose is deemed necessary. According to appellant’s version the trouble between him and the deceased arose out of an alleged relationship between the deceased and a woman who occupied an apartment adjoining appellant’s. Her husband was in the service and according to the testimony of appellant the deceased called on her frequently both day and night. A hole had been bored in the plaster wall between the apartments and appellant could hear and see what transpired in the woman’s room. Appellant testified the hole was there when he moved into the apartment. Appellant claimed the deceased had threatened to take his life by reason of gossip in which the deceased contended appellant had engaged concerning the deceased and this woman. According to appellant’s testimony there had been previous quarrels between him, the deceased and the woman, which resulted in appellant having been beaten by both the woman and the deceased. Appellant testified that on the day of assault Cole came to his apartment with something in his hand which was concealed behind him and threatened to kill appellant. The concealed article was a skillet. Appellant stated he warned Cole not to advance any farther, but Cole continued to advance in a threatening manner and he shot him.

In the state’s case in chief it offered, over appellant’s objection, a record of appellant’s conviction of the previous murder in the state of Oklahoma, a mandate of the Oklahoma Criminal Court of Appeals affirming the conviction but reducing the sentence to life imprisonment and a fingerprint record from the state penitentiary of Oklahoma. The transcript discloses the trial court took the offer under advisement and admitted only such portion thereof as showed the final decree and the nature of the offense. Counsel for appellant, at the trial, conceded that evidence would be competent on cross-examination of the appellant but contended it was inadmissible as a part of the state’s case in chief. Appellant also contended there was no similarity in the offenses. The state contended it was a similar offense and as such the conviction'was competent solely for the purpose of showing motive, intent, inclination and method of the commission of the crime. Touching the similarity of offenses the trial court stated:

“Whether he took a gun or a pistol or a shotgun, I don’t think it makes any difference; they are similar offenses.”

The court stated at the time that it would admit it only for the purpose indicated by the state. The court further stated, at that time, it would instruct the jury in writing relative to the limited purpose for which it could be considered.

The cross-examination of appellant relative to the Oklahoma mur- . der had been limited by the court to the fact appellant had shot a woman in Oklahoma by the name of Lizzie A. Morgan and to the method he employed in committing that murder, namely, by means of a .38 Colt, a six-shooter. Counsel for the state contended the court was too narrowly restricting the cross-examination and continued to ask questions, to some of which the court previously had sustained objections. In the course of the cross-examination appellant volunteered the statement that the crime for which he had been convicted in Oklahoma was an accident. Thereupon counsel for the state inquired, “How many times did you shoot her?” Notwithstanding the fact the court had previously sustained an objection to that question appellant nevertheless answered it as follows: “I think it was twice.” The court permitted the last answer to stand for the reason the witness had already answered it. There was no motion to strike the answer. Without objection appellant was further asked and stated:

“Q. Were you convicted of that crime, Mr. Owen? A. What crime is that? Of killing a woman?

“Q. Yes. A. Certainly.”

The trial court ruled out all other questions touching the Oklahoma offense. Touching the purpose for which the evidence of the Oklahoma offense could be considered the jury was instructed as follows:

“Evidence has been introduced of facts and circumstances relating to other similar transactions, not for the purpose of showing the defendant’s guilt in the transactions referred to, but for the purpose of showing his inclination, tendency, attitude, motive and intent, and is limited to that purpose.”

Evidence of similar offenses, when competent, may be introduced as a part of the state’s evidence in chief. (State v. Robinson, 125 Kan. 365, 263 Pac. 1081.)

Appellant contends the only purpose for which evidence of similar offenses is competent, under exceptions to the general rule, is to prove the identity of the person who is alleged to have committed the crime for which he is then on trial, to show system and plan and possibly also to rebut special defenses and cites State v. Frizzel, 132 Kan. 261, 295 Pac. 658. The contention is too narrow. The opinion in that case states the various purposes for which evidence of similar offenses is admissible under exceptions to the general rule. The purposes mentioned by appellant are only three of them. In that opinion (citing Wharton’s Criminal Evidence, 10th ed., p. 59) it was said, with approval, evidence of similar offenses is admissible under proper instructions when such offenses are relevant . . to prove identity of person or crime, to prove scienter or guilty knowledge, to prove intent, to show motive, to prove system, to prove malice and to rebut special defenses. . (p. 264.)

The general rule, however, is that the commission of the offense for which a person is on trial cannot be proved by evidence that such person committed another but independent offense although it be of the same sort. The basic rule is well stated in 22 C. J. S., Criminal Law, § 682, as follows:

“The general rule, which is subject to exceptions stated in §§ 683-690, infra, is that, on a prosecution for a particular crime, evidence which shows or tends to show that accused has committed another crime wholly independent of, and unconnected with, that for which he is on trial, even though it is a crime of the same sort, is irrelevant and inadmissible, and such evidence of an independent crime is inadmissible for the reason, among others, that it ordinarily does not tend to establish the commission by accused of the offense charged, that accused must be tried for one offense at a time, and that, in accordance with the more extensive general rule, which applies to all cases, civil or criminal, the evidence must be confined to the point in issue. Questions regarding the admissibility of such evidence have been said to be within the wise discretion of the trial court, whose rulings thereon should not be interfered with on review except where such discretion is abused, or unless it is clear that the questioned evidence has no bearing on any of the issues involved in the charge.”

Evidence of a similar offense is competent only, under the exceptions to the general rule, as tending to show the elements of the of-i fense for which a person is on trial. A majority of this court believes that the conviction of the former offense had no probative value with reference to any element of crime for which appellant was on trial. The evidence was prejudicial and its admission over appellant’s objection constituted an abuse of sound judicial discretion. Counsel for the state also placed too much emphasis on the former offense in his cross-examination of -'appellant. In view of this conclusion we need not determine whether the former- offense was a similar offense or whether the instruction requires a reversal. It is sufficient to say the instruction did not cure the erroneous admission of the testimony.

In support of the admissibility of the testimony, under the exceptions to the general rule, appellee cites State v. King, 111 Kan. 140, 206 Pac. 883; State v. Robinson, 125 Kan. 365, 263 Pac. 1081; State v. Hendren, 127 Kan. 497, 274 Pac. 274; State v. Dunkerton, 128 Kan. 374, 278 Pac. 57; State v. Turner, 128 Kan. 376, 278 Pac. 58; State v. Marr, 136 Kan. 602, 16 P. 2d 469; State v. Gwynne, 142 Kan. 13, 45 P. 2d 849; State v. W. H. France, 146 Kan. 651, 72 P. 2d 1001. We do not deem it necessary to repeat the facts in those cases. Unlike the present case the evidence of other similar offenses had probative value in those cases touching some element of the offense for which the defendant was on trial.

Appellant also directs .our attention to the fact the evidence of the Oklahoma murder was introduced by the state before any evidence with respect to the instant alleged offense was offered and contends such procedure was prejudicial. The procedure was irregular but counsel for appellant virtually agreed on oral argument with counsel for appellee that the procedure was adopted by agreement of counsel to accommodate a witness. Under such circumstances appellant is not in a good position to complain.

Appellee stoutly contends if appellant was prejudiced by the admission of evidence of the Oklahoma offense, which it denies, appellant cannot complain for the reason his counsel advised the jury concerning that offense at length in his voir dire examination. Appellee further calls attention to the record which indicates counsel for appellant interrogated the jurors individually and collectively whether they would permit evidence of the former conviction to prejudice appellant’s cause and that the answers of the jurors were in the negative. Counsel for appellant reply the trial court had admitted the evidence in a former trial which resulted in a hung jury; they were certain the court would do so again and they were, therefore, obliged to interrogate the jury on that point for appellant’s protection. The procedure adopted by counsel for appellant did not prevent him from objecting to the testimony when it was offered or relieve the court of ruling properly thereon.

' The cause is remanded with directions to grant appellant a new trial in conformity with the views herein expressed.

Thiele, J., dissents.