*1 homicides man- are uncommon and it is to define the usual easy every ner In almost unlawful are committed. killings case day it must In this necessarily be a question jury. a more society, refined the treatment de- given we cannot that say ceased by killings the defendant was not cruel and unusual. Such rarely happen. while he is in Beating a man death kicking condition, him, helpless with his hands behind unable handcuffed himself, defend cannot be as a matter of law in declared state to be neither cruel nor unusual.
It is the court erred in argued failing defendant that to give defendant’s and his requested instruction self-defense instruction the cause that relating to of death. record reveals the trial court sufficiently covered defendant’s requests both of no error is made to affirmatively appear.
A review of the entire record that defendant was granted reveals a fair and trial impartial at represented by was well counsel every stage of the proceedings. any The record does not disclose matter even approaching reversible error. The is there- fore affirmed.
It is so ordered. 40,639 No. Roy Z. Johnson, M. Appellees, Bacon, Edna Helen Johnson Appellant. Company, Colorado Interstate (322 781) P. 2d *2 Opinion filed March argued Shelley Graybill, Elkhart, and on the for the of cause briefs
appellant. cause, Kramer, Hugoton, argued Nordling, E. and Bernard A. E. appellees. Hugoton, him for was with on the briefs by court delivered of the opinion The Robb, This is a in eminent domain condemn proceeding J.: a way high for a line. The landowners right pressure gas pipe had appealed district from award appraisers and this by overruling the condemner from order appeal trial in motion new the court below. involving cases condemner the same companion by
Two court. Colo- (Smith been before this line heretofore pipe have Co., 226; 294 P. Denman v. Gas 179 rado Interstate 179 Kan. P. 2d 207.) Colorado Interstate and to appellees shall the landowners appellant We refer not only as the condemner. The are involved pleadings trial be parts proceedings salient evidence will sole of error is the trial court’s specification summarized. The condemner’s motion trial. overruling order for new sought condemner across right way by running diagonally The the land was a 163.09 rods and 50 question strip feet wide long containing 3.08 acres. Milburn,
Tom voir juror, indicated in his dire ex- prospective land; amination that the Cities Service line his that pipe crossed had he of a relationship satisfactory; pending knew .their discussed; had companion case but not heard it had heard dis- he cussions easement pipe-line values from time to time but had idea; no set opinion just he he could thought ignore — opinions his own be and the guided by evidence court’s instructions; had he been a member of and had received bulletins Association, read; he had Owners some which Royalty
the bulletin contents have influence him but he did might think have they any bearing would this case or on his verdict.
The first raised the motion for trial question by new involves juror because inspecting while when sent the court premises, by so, to do he stated to the jurors, other ad- contrary court’s monition, pipe that lines never made him dime and the more you get Later, can out thém the better he it. during would like deliberations, the jury’s he further stated that he “against pipelines”; that they were “paying per year $2.00 in Texas per rod Oklahoma”; that he knew what from pipe-line companies made lines like this one and there was no reason landowners should why not be well paid. The above matters were shown affidavits of two other at the hearing on the motion for trial. new testimony landowners’ showed that the four foot wide strip where the line was laid had ridges eighteen inches *3 high sunken places foot with deep light-colored on surface gyp the which would cause extra in work cultivating the land. The land awas of good grade soil and top very level. The of quarter land before acre, the taking was worth to $90.00 $100.00 an or a $14,400 $16,000, total of to according to one witness. It was worth $110 acre per witness, to according another third testified the of taking the of right way decreased the value of the surface acre, entire quarter $1,600. $10.00 or a total of
Special questions were asked and answered by jury the as follows: “1. What the fair quarter market value of the surface of Plaintiffs’ sec- immediately tion of land taking pipeline right by before way the $14,000.00. Defendant? A. “2. What was the fair quarter market value of surface of the Plaintiffs’ immediately section of land pipeline after Defendant took the easement and subject $13,000.00.” to it? A. returned the following verdict: right way “Value of acquired................ easement of $652.36
“Damage remaining 156-plus to $347.64 acres...................... damages................................ “Total amount of $1,000.00” The trial court judgment entered in the landowners’ behalf 11,1956, December $1,000. the sum of Condemner filed its motion for new trial based on the following grounds: jury.
1. Misconduct of rulings of the court. 2. Erroneous and instructions prejudice. passion given influence of under the 3. The verdict was part contrary evidence. is in whole or in The verdict jury’s special the answers and inconsistent with in conflict 5. The verdict is special questions submitted, the conflict and inconsistent with is in judgment herein. verdict and cannot form file basis for a motion, afore-mentioned Upon the above the hearing the show the misconduct affidavits of were offered to jurors the two and while the juror Tom Milburn both in the room the the viewing land The trial court question. overruling motion for new trial stated: “Whereupon plaintiffs object to the consideration [landowners] . . . request by affidavits to file counter said affidavits court and further leave Milburn, regarding any alleged juryman Tom event misconduct the Court found Niles and Dunn affidavits that the statements contained in the pertinent
were to the issue.” for new condemner’s motion It from this order is overruling court. trial that this has present appeal brought considering the in not the trial erred Condemner contends court ir- incompetent, treating two but them affidavits of the out in its set quoted portion relevant or immaterial reason of the by the motion new trial. order overruling one, that of the miscon- serious very and a The first question, examination and on voir dire duct answers of Tom Milburn in his property viewing while he made subsequent statements Such conduct room. during deliberations to be it would seem at first blush censorable and juror highly consider whether reversal, sufficient but we must justify former deci- when tested should be disturbed case. circumstances of this sions of applicable *4 condemner as part the complaint no there was Apparently and we examination on voir dire questions Milburn answers to s that the condemner can except say point on this linger will not decep were false or or that the answers deceived not claim it was being deprived for condemner in counsel and resulted tive Milburn was impartial, whether determine opportunity 490, 178 2d Hiesterman, P. the v. Kerby as case was for or on a peremptory cause the juror Here not challenged Ernzen, 284, 181 Kan. the case challenge as was Critchfield 930, condemner and allowed 289, passed by but he was 310 P. merely case. We mention these chal on the trial to serve on a of prejudice. for what follows as lenges preliminary showing juror The well-established rule misconduct of regarding 86, Co., clearly 145 Kan. expressed Bohannon v. Taxicab Peoples 1, 64 P. 2d submitted, closely “A should confine itself to the evidence but because one, jurors may testimony two or three make as to matters outside remarks affirmatively does vitiate verdict unless it be the remarks shown
prejudicially (p. 88.) affected the verdict.” 204, The rule was again stated 179 Kan. Lampe, Pulkrabek v. 293 P. 2d where the from the dictionary obtained a sheriff’sofficeto ascertain the meaning of word That proximate. opinion fully and clearly discussed misconduct of in criminal and civil cases as well as the difference in opinions before and after 1909 when the civil code was revised. pertinent provisions 1949, 60-760, of G. S. 60-3001, and 60-3317 were set forth therein and we will not cover them The cir- again. cumstances in the Pulkrabek case court as existing impressed this constituting improper and reprehensible misconduct the bailiff for procuring the dictionary for referring to it. However, there, here, the court must determine whether it affirmatively appears that the rights substantial of the complain- ing party have been prejudiced before the verdict is vitiated so as to afford a ground a new trial. requiring
When the just test discussed applied is to the misconduct of Milburn while viewing premises the jury’s delibera- during tions, there no is affirmative showing that such misconduct prej- udiced the substantial of the condemner. Neither of the rights mentions anything affidavits about the effect of Milbum’s state- ments on the or that acted it upon them. They contain only his statements and one affidavit quite as to what those vague were. statements We conclude that the verdict was vitiated grounds or that a new trial were present. granting It is next contended condemner that a new trial should have because the its granted jury, by answers to special questions, and one-half times more awarded two damages for the acreage in than it right way acquired found to be the value per acre the entire section immediately prior quarter to the taking, n more than the evidence showed the land to be worth. These were special questions approved proper Denman v. Interstate 179 Kan. Colorado 294 P. 2d 207. There amount no variance between total of the general verdict ($1,000) and the in the difference value surface of the quarter section
479 of land before and after the of the taking right of way as ($1,000), reflected by the answers to the special Since questions. both $1,000 amounts were we cannot say there was any inconsistency which would verdict, have justified aside the setting reversing thereon, rendered a new trial. granting (G. S. 60-2918.)
Regarding amounts added together to at the total arrive amount verdict, of the general the condemner argues the either increased the damage to the right way to damage cover residue and then made an additional of the award damage the residue or it completely failed to heed the trial court’s instruc tions. The landowners offer no that if there explanation except anything with wrong the general then the answers verdict special questions will control and the same result will be reached. We are unable to ascertain how the at the jury arrived amounts it added in together its verdict. A rule of law applied many in stances kind, of this which on some harsh,' occasions seem may has and, followed through the years considering the over-all pic ture, has proved to be worthy. The rule was last stated Taylor v. State Commission, Highway 182 as P. follows: “A verdict will definitely not be disturbed because a precise
ascertain the method which a arrived at amount of a ver- dict when that reasonably range amount within the of the evidence.” (Syl. 5.) This us to brings condemner’s next contention that the evidence did not support the amount of the The amount verdict. ver- dict, out, and, as heretofore set was well within the evidence ad- dition, the was taken out to As we premises. view stated case, in the Taylor could consider or all supra, any evidence with along addition to its of the premises. view evidence, While a jury may so consider the there is also the rule stated, that it is not bound of it by any particular part as was substance, in Denman v. Colorado Interstate Gas supra, p. We cannot follow condemner’s contention there was no evidence to support amount verdict.
The next point relates to restriction of condemner’s cross-exami- shows, nation of a tenant on the farm but the record and condemner admits, that the witness was not testifying expert regarding such, his opinion, the land. Thus a serious value of ques- tion remains as to whether there was restriction of cross-exami- any *6 restriction, it was there was such the trial court. If
nation by affirmatively appear which did not error and irregularity technical the con- substantial rights affected the prejudicially have are grounds and we conclude 60-3317) demner S. (G. trial. a new grant the judgment insufficient reverse of the instructions of one portion The final question involves but when we con- speculate, tend to allow might it, turn, with all other and consider sider the entire instruction instructions, that the argument with condemneds agree we created because of prejudice instruction complained true when we the rule especially apply attacked. This is the part this, too, since comes under the clas- stated above to prejudice error and irregularity. sification of technical affirmed. Judgment In my judgment the remarks of Fatzer, (dissenting): J. Juror grant and I would prejudicial appellant
Milburn were new trial. 40,657
No. Appellant, v. Albert McDonald, Carlson, U. S. also known Carlson, Appellee. A. A.
(322 798) P. 2d