State v. Palmer

251 P.2d 225, 173 Kan. 560, 1952 Kan. LEXIS 251

• Court: Supreme Court of Kansas
• Decided: December 6, 1952
• Docket: 38,646
• Status: Published

Opinions

The opinion of the court was delivered by

Harvey, C. J.:

Elbert Palmer, commonly known as “Babe” Palmer, was duly charged by an information filed in the district court of Cowley county with the crime of murder in the first degree in shooting and killing Robert M. Bradley. Upon a trial the jury found him guilty of murder in the second degree. His motion for a new trial was overruled, the court approved the verdict and sentenced him to fifteen years in the penitentiary. He has appealed and contends the court erred (1) in admitting evidence offered by the state in presenting its case in chief, of voluminous testimony, information, journal entry and verdict of the jury in remote, unrelated convictions of defendant; (2) in refusing to instruct as to lesser offenses of which defendant might have been found guilty under the information and evidence; (3) in failing to have the bailiff sworn as required by G. S. 1949, 20-312 and 62-1448, and in permitting the bailiff to take exhibits to the jury room which were not in evidence; (4) in not sustaining defendant’s motion to be discharged, and (5) in not granting defendant a new trial.

Having examined the abstract, counter abstract and briefs of the par-ties, and also the transcript of more than 500 pages, the pertinent facts, necessarily omitting many details, may be summarized as follows: Robert M. Bradley and Charles Mays had lived in Topeka several years, where they were employed in construction work. Sometime in the summer of 1951, perhaps in July, they went to Winfield, where they got employment at the Binney & Smith plant. They had a room together at 1618 Manning street. Some months prior to going to Winfield Mays had obtained a .22 caliber pistol, the chamber of which held eight shells, which he kept in his grip. Sometime prior to going to Winfield Mays had made the mistake of selling a pint of whisky to a revenue officer and was on parole. On Friday, August 31, 1951, Mays and Bradley quit their jobs in Winfield and drew their pay. Sometime that day Bradley saw the pistol among Mays’ belongings and said he had better carry it, for if Mays was found with it, it might cause him trouble with his parole. Bradley took the pistol and stuck it in his belt in front on the left side. He was wearing a sport shirt and the outline of the pistol was readily seen by anyone who observed him. They put in the afternoon and evening, part of the time at some place where they could find liquor, and a part of the time at the Legion hall. Saturday morning they got up late and about noon went to a place at 202 East Fourth street in Winfield known as the “Ben Alberty Place” or “Dave’s Place.” This seemed to be down near the railroad tracks. There they found people drinking and a dice game going on in the kitchen. The party got noisy and the Reverend Crawford, who lived next door, appears to have complained about it to the police. Bradley was particularly noisy and boisterous; had a quarrel with someone about a seventy-five-cent bet. Mays and Bradley met a Tillie Douglas, who lived at Dave’s Place and sometime, perhaps soon after noon, the three of them drove to Arkansas City, where Mays and Bradley expected to get employment, and did so. While there they bought two bottles of whisky of the size known as “fifths.” They drove back to Winfield and to their room on Manning street. There they opened one of the bottles and each of them had a few drinks. They went back to Dave’s Place, taking one of the bottles of whisky with them. There they were not stingy with the whisky; the bottle was passed around. A number of persons drank and there was testimony that Bradley had three drinks. About 3:30 or 4:00 o’clock in the afternoon the crowd was getting noisy again and the crap game in the kitchen was broken up. A number of persons were at Dave’s Place in the afternoon. Among them were Babe Palmer and his wife’s sister, Bernice Thomas. Dave Anderson, who lived at the place, told Babe Palmer that Bradley was carrying a gun and that he was boisterous and rough and a dangerous man. Babe and Bernice went to his home about a block from Dave’s Place. Soon thereafter Tillie suggested to Mays and Bradley that they go to Babe’s home, which they did. Babe Palmer was not acquainted with Mays and Bradley prior to that day — had never met them and had not invited them to his house. When Mays and Bradley went in the Palmer home Babe Palmer asked them if they wanted to gamble. Mays replied yes, if there were dice. Babe Palmer’s house has three rooms on the ground floor and a sleeping room upstairs. It faces to the south. The east room is the living room. There is a door on the south side of the room not far from the southwest corner and a porch along the south side of the house in front of that door. That was the door that was being used as an entrance to the residence. In this living room was a divan along the north side of the room with the east end near the east wall. Sitting a few feet to the south of it was a coffee table. In the southeast portion of the room was a bed sitting at an angle from northwest to southeast. There was a bureau somewhere in the room and also some trunks or lockers and chairs. Directly west of the sitting room is the kitchen. There is a door between the two rooms near the south end of the partition between them. Directly west of the door was a gas cooking stove. There were chairs, a dining table and other furniture in the room. The downstairs bedroom is directly north of the kitchen. When Mays said he would gamble with dice they went in the kitchen, where the dining table had been covered first with papers and then with cloth, apparently fixed for the shooting of dice. Two red dice were on the table. Mays started to shoot dice, said he shot only once, and told Palmer that the dice were crooked. Palmer asked him if he wanted his money back. Mays answered that he would just keep the dice, and put them in his pocket. He said he had lost not more than four dollars. Mays went out into the living room. Bradley stayed in the kitchen. A number of other persons came in, perhaps as many as eight or ten. Most of these were in the kitchen, some of them shooting dice, others standing around watching the game. Bradley was shooting dice. Apparently he took his shirt off and hung it on the back of the chair. He was still carrying the pistol in his belt, which of course was plainly seen. He was boisterous, talking in a loud voice, and got in a quarrel with someone about a two-dollar bet. He was quoted as saying in a loud voice that he would just as soon kill a man or get killed over two dollars as over a dime. This phrase was quoted somewhat differently by the different witnesses. Palmer was in the kitchen while the quarrel was in progress. Whether he was engaged in it is not clear. There was another quarrel about a torn dollar bill. Apparently Palmer was engaged in that quarrel, for he came through the door into the living room with a part of the torn bill in his hand. Whether that quarrel was with Bradley or someone else is not clear.

About the time Palmer went into the living room from the kitchen the dice game broke up and most of the people in or about the game left. When Palmer came into the room he went over and sat down on the divan or stood and reached down near the northeast corner of the living room. The evidence on that is in conflict. Bradley came out of the kitchen while Mays and Bernice Thomas were standing visiting. Mays testified Bernice was nice looking and that he liked her, although he had met her that day for the first time. Bradley stepped up and said something about Bernice being nice looking and asked if she was married and was informed that she was not. Then Bradley made a remark to the effect that a woman who was as nice looking as Bernice and who was not married there was something wrong with her. There is testimony to the effect that Bernice told Bradley he was making too much noise and there was too much trouble and he had better leave the house, and that Bradley in a loud voice resented that criticism and said that no damned woman could tell him when to leave the house. There was also testimony that instead of using the word “woman” he used the one which reflected on the morality of Bernice, and also that Bradley struck her and knocked her over the coffee table. Mays, testifying for the state, said he did not see that. At that time Palmer came up and told Bradley that he should not treat a woman that way or talk to her that way. Bradley, who had been carrying Mays’ .22 revolver since Friday, immediately drew it from under his belt and pointed it at Palmer, and, as testified by Mays, started backing toward the door. Palmer testified that Bradley shot at him and hit him in the left arm. In any event just after Bradley drew his revolver and pointed it at Palmer, Palmer shot Bradley with a .45 caliber army Smith & Wesson revolver. In fact he shot twice, the shots being close together. One shot struck Bradley near the fifth rib on the right of the sternum, passed under the skin and through the fleshy part of his arm about three inches below the shoulder. The other one struck Bradley about the seventh or eighth rib left of the sternum, passed upward through the fleshy part of the heart and came out at the back about two inches below the top of the shoulder and about three inches to the right of his neck. Powder burns on Bradley, where the bullets entered, indicated that the muzzle of the gun was not more than six inches from his body. Palmer then turned to Mays and threatened him. Mays grabbed Palmer by the wrist, jerked him around, tripped him and threw him on the floor face down, with Mays on top of him. Mays scuffled with him there in order to get his revolver away from him, and succeeded in doing so. During the scuffle the revolver was fired twice, both shots going through the floor. During this scuffle Bradley walked-out the south door, across the porch, and some twelve feet in the yard, where he fell dead. When Mays got the revolver from Palmer he ran out the south door, took his own pistol out of Bradley’s hand and went away with both pistols. He went to the home of a man whom he had known in Topeka and asked him to keep the revolver until he called for it, and said he and Bradley had been in a shooting scrape. He was located about an hour later and taken into custody. Palmer left his house soon after Mays did and a short distance from there saw officer Dill. He told Dill he had shot a man, and later he said he had killed a man. He asked to be taken to his house, and told the officer to look out for that big black fellow, for he was dangerous, probably referring to Mays. The chief of police was notified and he and other officers searched the premises. The two bullets from the shots fired at Bradley were found in the kitchen, one under the stove, the other on a chair. They made a careful search of the floor of the living room for the two bullets that were fired into the floor and found them in the dirt under the floor. They found no mark on the floor or anywhere in the living room of the .22 bullet which Palmer said had been fired by Bradley. There was other evidence tending to show that the .22 pistol belonging to Mays and carried by Bradley had not been fired. We need not go into a detailed discussion of subsequent events. At the trial Palmer did not deny that he shot Bradley. His contention was that Bradley had attacked him and that he was in fear of his life and shot in self defense.

All the people who were at Dave’s Place and those at the Palmer place are colored people. At the beginning of the trial defendant objected because no colored persons were on the jury and pointed out that in the process of selecting the jury the court had asked the sheriff to pick up talesmen; that some fifteen were selected by the sheriff and that no colored persons were included in the list, and stated there were many colored people in the county qualified to serve as jurors and that none had been selected for that purpose. In answer thereto the court pointed out that no talesmen called by the sheriff served on the jury and that the jury which served was regularly selected from the jury panel.

Upon the trial the state’s evidence clearly disclosed that the death of Bradley was caused by one of the shots fired by Palmer. The state offered other evidence much more in detail than above summarized.

The state then called three witnesses, whose testimony may be summarized as follows: Mr. Little, chief of police at Wellington, was permitted to testify that he had a talk with Palmer on October 5, 1946, at Wellington, at which time Palmer stated that he and his wife had gone to Wellington the day before and stopped at the home of a Mr. Johnson; that he gave Johnson a 30-20 Smith and Wesson pistol he had and asked Johnson to keep it until he went home; that in the evening he and his wife were going to the residence of Ethel Lopez to play poker and asked Johnson to let him have the pistol. Johnson gave it to him and he tucked the gun up under his trousers and went to the Lopez place, thinking there might be trouble; that enough people did not come there to play poker and that he and his wife went back to Johnson’s. The state also called A. D. Williams as a witness. He was the chief of police at Independence and had held that position about two and one-half years. He was in charge of the records there, and the records showed that on May 19, 1939, the defendant Palmer was arrested for carrying a loaded .38 caliber owl head revolver; that Palmer entered a plea of guilty in the city court and was fined $25 and ordered committed to jail until the fine was paid. He served ten days and was paroled to leave the city by six p. m. of that day; that on June 13, 1939, Palmer was picked up for investigation, his parole revoked, and he served ten days in jail on the original judgment. He had no pistol with him at that time. There is no record that he assaulted anyone, or attempted in any way to use the pistol.

E. P. Bloomer, called as a witness by the state, was permitted to testify that he was county attorney of Cowley county in 1929. The witness had with him the information he had filed September 17, 1929, charging Elbert Palmer with an assault with a deadly weapon upon one Sanchez; also the journal entry of the trial and the verdict of guilty and the sentence to the reformatory. All these papers were offered and received in evidence. All of the testimony of these three witnesses was strenuously objected to by defendant. It was admitted by the court “just for the purpose of showing a motive, intent, habit, inclination, plan and system of operation, and for no other purpose.” The court also stated the subject would be covered by proper instructions. The instruction given by the court on that point reads as follows:

“In the course of the trial of this case the state has introduced evidence of prior similar convictions of the defendant. This evidence has been admitted by the court with the admonition that such evidence is limited to a consideration by the jury as tending to show motive, intent, habit, inclination, plan and system of operation.”

Defendant duly objected to this instruction, and particularly to the use of the words “similar conviction.”

We think defendant’s objection to receiving the testimony of the three witnesses last above mentioned, and his criticism of the instruction, were well taken. The gist of the question being tried in this case was whether Palmer, when he fired the shot which killed Bradley, did so in self defense. No similar issue was involved in any of the cases testified to by the three witnesses last named. The pertinent general rule is stated in 22 C. J. S. 1084 as follows:

“The general rule is that evidence that accused has committed another crime independent of, and unconnected with, the one on trial is inadmissible; it is not competent to prove one crime by proving another.”

We have said in State v. Frizzell, 132 Kan. 261, 295 Pac. 658:

“The rule against the admissibility of evidence of other similar but independent offenses should always be strirtly enforced, . . .”

We did enforce it in the late cases of State v. Owen, 162 Kan. 255, 176 P. 2d 564, and in State v. Winchester, 166 Kan. 512, at pages 514 and 515, 203 P. 2d 229, as we had done in earlier cases. There are exceptions to the rule which are treated in 22 C. J. S. on the pages following the one from which we quoted. Our own cases dealing with the rule and recognized exceptions thereto are digested in Hatcher’s Kansas Digest, Rev. Ed., under Criminal Law, §§ 267 to 271. We find no necessity of citing or attempting to analyze all these cases. We think the evidence of the three witnesses above mentioned should not have been received and that the instruction given by the court was inaccurately worded.

Counsel for appellant contend the court erred in refusing to instruct on lower degrees of homicide. Having carefully examined the record we think the point is well taken and that an instruction might well have been given on second degree manslaughter under G. S. 1949, 21-411, which reads:

“The killing of a human being without a design to effect death, in the heat of passion, but in a cruel and unusual manner, unless it be committed under such circumstances as to constitute excusable or justifiable homicide, shall be deemed manslaughter in the second degree.”

And under G. S. 1949, 21-412, which reads:

“Every person who shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or do any other unlawful act, after such attempt shall have failed, shall be deemed guilty of manslaughter in the second degree.”

And certainly we think an instruction should have been given on manslaughter in the third degree under G. S. 1949, 21-413, which reads:

“The killing of another in the heat of passion, without design to effect death, by a dangerous weapon, in any case except wherein the killing of another was justifiable or excusable, shall be deemed manslaughter in the third degree.”

In State v. Fouts, 169 Kan. 686, 221 P. 2d 841, the court held:

“In prosecutions for homicide it is the duty of the trial court to instruct the jury, not only as to the offense charged but as to all lesser offenses of which the accused might be found guilty under the information and upon the evidence adduced, even though instructions have not been requested or have been objected to.”

The statute and some of our former decisions are set out in the opinion (pp. 692, 693).

In State v. Germany, 173 Kan. 214, 245 P. 2d 981, where defendant was charged and found guilty of murder in the first degree, and it was contended (p. 225) that the court erred in not instructing on second degree murder or any of the degrees of manslaughter, we pointed out that the evidence clearly disclosed that the murder was committed in the perpetration of a robbery and had to be murder in the first degree under our statute (G. S. 1949, 21-401). The doctrine of that case is not applicable here.

Should it be contended that the testimony of the state in this case did not require the submission of an instruction upon lesser degrees of homicide, a question which we do not determine, certainly it cannot be said that the defendant’s testimony does not require the submission of instructions on the appropriate degrees of manslaughter. He was entitled to have his theory of the case submitted to the jury.

Counsel for appellant next contend the court erred in failing to have the bailiff sworn, as required by G. S. 1949, 20-312 and 62-1448, and in permitting the bailiff to take exhibits to the jury room which were not in evidence. The pertinent statutes may be summarized or quoted as follows: Section 20-312 authorizes the judges of district courts to appoint a bailiff to serve at the pleasure of the judge, and generally outlines the bailiff’s duties, and further reads:

“In every case in which a bailiff is placed in charge of a jury during its deliberations, such bailiff shall, before entering upon the discharge of such duty, take and subscribe to an oath to support the constitution of the United States and the constitution of the state of Kansas, to faithfully perform the duties of bailiff of such court in charge of the jury in the case upon trial, to keep such jury together in some safe, convenient and proper place without food except such as the court shall order, and not to permit any person to speak or communicate with such jury in any way, or to do so himself unless ordered by the court, except to inquire if they have agreed upon a verdict, nor. communicate to anyone the state of the deliberations of such jury, and to return said jury into court when so ordered by the court.”

Section 62-1448, which is a section of our statutes pertaining to criminal procedure, reads:

“After hearing the charge, the jury may either decide in the court, or retire for deliberation. They may retire under tire charge of an officer, sworn to keep them together in some private or convenient place, without food except such as the court shall order, and not permit any person to speak or communicate with them, nor do so himself unless by order of the court, or to ask them whether they have agreed upon their verdict, and return them into court, or when ordered by the court. The officer shall not communicate to any person the state of their deliberations.”

From the record before us it is clear that neither of these statutes was complied with. In State v. McCormick, 57 Kan. 440, 46 Pac. 777, a similar situation existed and it was held:

“Held, that the administration of the oath is an important step in tire prosecution, and being specifically required should not be disregarded.”

In State v. Crilly, 69 Kan. 802, 77 Pac. 701, where the statute had been disregarded, the court held:

“A new trial will not be granted in a criminal action on account of the failure to have the bailiff sworn before his taking charge of the jury, where it appears that the defendant’s attorney was cognizant of the omission and made no objection at the time, and that tire bailiff properly performed the duties that would have been imposed by the statutory oath.”

In this case the attorney for appellant was not in the court room at the time the jury was sent out to consider the case. He had a long distance call and was at the telephone. The defendant was present and apparently made no objections to the failure of the court to administer the oath to the bailiff. At the argument on this point the record shows the following:

“By the Court: ‘I want to state for the record that this county and the courthouse have no provisions for housing and feeding juries.’ ”

Which is perhaps an explanation of why the oath was not administered. This does not appear to us as being a very good reason. It is the duty of the county to furnish a place for the court to transact its business. (G. S. 1949, 19-104). The place furnished should be sufficient to enable the court to conduct its business in harmony with law.

In this connection appellant complains of the conduct of the bailiff. It appears that the foreman of the jury advised him that the jury would like to have the testimony of a certain witness read to them and were informed by the bailiff that it would take two or three hours to read the testimony, whereupon the jury said they would get along without it. Possibly the bailiff reported that request to the court and was directed by the court to advise the jury as he did. Either way it was done we think it was improper. At any time a jury feels the need of hearing testimony read the request should not be refused because of the time it would take to read the testimony.

A further complaint is made of the conduct of the bailiff in that when the jury asked for the exhibits a document marked by the reporter only for identification and not offered or received in evidence was taken to the jury. What effect, if any, this had upon the jury’s deliberations is, of course, speculative, but it was an incident that cannot be condoned.

Counsel for appellant next contend that the court erred in not discharging the defendant. In this connection it is pointed out that Charles Mays was the only witness for the state who testified to the actual shooting, and it is contended that his testimony is positively contradicted by the physical facts, invoking the rule stated in Fisher v. Central Surety & Ins. Corp., 149 Kan. 38, 41, 86 P. 2d 583, and others of like import, to the effect that where the testimony of a witness is positively contradicted by the physical facts neither the court nor the jury is permitted to give credit to such testimony. This argument is predicated on an analysis of the testimony of Mays as to just where Rradley was standing and just where Palmer was at the time the fatal shots were fired, together with the fact that the bullets were located in the kitchen, west of the living room, where the shooting took place. We have re-examined the testimony of Mays and also the testimony of Palmer and find that neither of them was certain as to just where the parties were with reference to each other, or the posture of either of them. This point is not well taken.

Appellant contends the court erred in not granting his motion for a new trial, and among other questions argues that his motion to quash the panel of jurors should have been sustained for the reason that no colored people were called as regular jurors, nor by the sheriff when asked to select additional jurors, citing Patton v. Mississippi, 332 U. S. 463, 68 S. Ct. 184. As previously noted herein, it appears that no one called by the sheriff as an additional juror served on the jury which tried the case. They were all chosen from the regular panel, and there is no showing that in selecting that regular panel there had been any discrimination because of the race of those selected, hence we do not have before us the question ruled upon in the Patton case.

It is shown by the record that when the chief of police and other officers went to the Palmer home soon after the homicide and were making their search about the premises they opened a trunk or locker in which they found some loaded dice and marked cards, which were offered in evidence. The complaint is that this was done without a search warrant. Cases are cited from the federal courts and from some of the states tending to establish the fact that a search warrant would have been needed. We think that is not the rule in this state. (See, State v. Johnson, 116 Kan. 58, 66, 226 Pac. 245.)

Counsel also call attention to his objections to several of the instructions given by the court. While some of the instructions are open to the objections made to them we think they are of such a character as are not likely to occur again, and for that reason we shall not take time to go through them seriatim. Questions previously discussed herein were also urged upon the court. For the reasons hereinbefore stated we think the new trial should have been granted.

The judgment of the trial court is reversed with directions to grant a new trial.

Parker, J., dissents from subdivisions 1 and 3 of the syllabus and the corresponding portions of the opinion. Price, J., dissents from subdivision 1 of tbe syllabus and tire corresponding portion of the opinion.