*1 44,321 No. Appellant. Appellee, Basker, Kansas, State Frank (424 535) P. 2d 4, 1967. Opinion filed March Hagan, argued City, Eldon L. Kansas cause and was the brief appellant.
for the Londerholm, attorney general, Robert C. Menghini, county Frank D. at- torney, Grauberger, county attorney, Albert E. assistant brief on the appellee. for the The opinion of the сourt was delivered
Harman, C.: Frank Basker Appellant was convicted by of the offense of attempted the first degree. His motion overruled, new he was sentenced under the habitual criminal act by virtue previous conviction to term of not less years than ten nor more than twenty-one years, and he has now appealеd.
Appellant’s first specification error involves the character of representation him at given the trial. It appears before trial the local newspaper contained publicity about the failure of appellant’s court-appointed file attorney to income tax returns. This matter brought to the attenion of the trial judge. He turn discussed it with appellant and his attorney result that the judge appointed as further counsel for appellant an office associate of the lawyer previously appointed. Appellant discussed this matter with both attorneys and made the decision to proceed to trial in this manner with bоth counsel, acting defense last appointed counsel to “try” the former to sit in had been who attorney, The first chair” the case. and “second the case discussed trial, had several months prior appointed *2 previous time in detail and from time office associate de- in appellant’s collaborated trial. The two to commencement of from somewhat and, can determine for all we fense at the of review record, A careful zealously ably. and they did it sparse of charge inadequate which nothing upon that record reveals defense, or the handling in poor judgment preparation, can be sustained. prejudicial publicity the offense charge not the information did contends
Appellant contention appears the first degree. of in attempted robbery seeking appellant for time upon appeal, to be raised the first Minor, in announced State recently rule himself within the bring an in- 724, based upon that conviction P. 2d offense is vоid. charge formation not which does sufficiently it could been Doubtless have We have examined the information. in archaic and it style, more refinement and drawn with less subject specific, been made more definite but being have con- appellant think it sufficient to the offense of which was charge stated, any way. victed. As never attacked in Appellant was informed the trial by the trial at the commencement of robbery. the information He does charged attempted lack of further way by particu- to have been misled appear in the information and no is shown. prejudice larity con- of of evidence. He was Appellant complаins insufficiency of Haith victed of the one Samuel who was attempted Haith Mr. testified two men entered charge pawnshop. first that one of them asked for a crowbar pawnship; is a testified pulled said: “This He further holdup,” pistol. he the floor and crawled around the counter he dropped where revolver; that he raised men kept up gun the two through turned and fled the front door immediately shop. Mr. Haith identified the Frank postively Rasker as one appellant men alone two who rob him. This attempted testimony from the victim the offense is sufficient to sustain the conviction. Appellant would make much some inconsistencies appearing are, evidence the prosecution. arguments Such and doubt- were, less addressed to Resolved properly against appel- lant the trier fact unavailing re- upon appellate view.
Further is made as to about a A complaint gun. police officer the offense obtained a investigating gun the home Wilbert McCray, the owner of the “getaway” car used would-be robbers. McCray charged was not in connection with the offense. gun displayed the trial and the prosecu- tion it in attempted offer evidence as an exhibit. No one was able to identify the gun so as to positively appel- connect it with lant and the trial court did it to be permit received in evidence. Appellant contends he was prejudiced by reference to the gun. The rule in such a situation is S., stated 23A C. Criminal J. Law, 1087, 114-116,as pp. follows: § prosecuting “While attorney legally not endeavour to introduce inadmissible range evidence ... he should be allowed full within bring law to all good out the material evidence he hаs reason to believe will light alleged shed on the commission offense, in tire absence of bad displaying faith the evidence, of an exhibit not thereafter introduced *3 attempting improper evidence, to introduce prejudicial does not constitute misconduct.” This rule was Brown, in State applied 2d 396 P. 401, a case of attempted where, here, a which pistol could not be identified by eyewitnesses was an officer displayed by at the trial but not received in evidence.
Nothing in the instant record indicates bad faith on the part the prosecution in its reference to the and gun the efforts to con- nect it appellant; his charge prejudice therein is not supported by record.
The last specification error is based on the giving of an addi- instruction to jury. tional It that appears the case was sub- mitted to the for its determination at 11:00 a. m. on February 3,1965, the second day the trial. The jury went to lunch at 12:00 noon and resumed its deliberations at 1:20 m. At p. 3:00 p. m. same sent in a note to the trial judge stating it could not reach a decision. The following colloquy occurred open court: I always realize “The Court: possible that it is not people for twelve to agree hand, on a verdict. On every the other effort should be made to arrive expensive. at a verdict. Trials discharge are verdict, If I this without a a new has to be try selected again. and we have to the man The evi- going dence is to be much the same people for the next twelve to consider. going just downright I’m not pigheaded to be you folks; you if can’t verdict, you can’t, arrive at a really I but don’t you believe that have tried
long enough. I that necessarily know time isn’t you the criteria which deliberating this you not, out you agree have been but decide can whether go up- you going that back insist I’m to fcase not to three hours. exceed compromise true anybody while, to I don’t ask stairs for a at least. little you acquittal con- one of for you convictions. If there are eleven of minority. сhange I don’t viction, in the anybody he I ask because is don’t to in, think I do anybody bring but that he doesn’t believe want in a verdict to throughly. thing you examine the it men and to behooves as reasonable women how you minority, and six—I don’t are six Those who are any are; know- you you I haven’t business are and to know I don’t want how this on ing you Suppose you thоse behooves how are six six—it stand. hand, group, arguments the other hand listen those on other to to the right. reflection, maybe, upon sincere, objective is the other side see if to is something making Maybe you All I can do a mistake. have missed try to urge you try I have to I have to do. to to arrive at a decision. This juries and try every day I the world without conclude these cases. cases Now, you hung don’t give folks I I have a decision. can’t have to saying you, telling give decision, you to ‘You I’m that. I’m not have to not go you bring be up stay me wouldn’t there and there until decision.’ thing, right, intimating any really that I’m such I don’t not even but you accept your present that cannot three sufficient to indication hours is possibly arrive at a in this case. while, going you go little and make up, “I am to insist that back at least for a argument. effort, you trying other further with each of to see the guy’s Maybe you wrong. reach he is are an honest effort to make Just get my position try I decision. I think I have to here. have to do that anybody say you this I wаnt concluded. I will more that don’t once minority; agreeing isn’t just that with the other he be in folks because hand, supposed supposed you it’s to work. On the other are pigheaded, either, listening you, openminded and and if one of arguments something persons, says to what of the other that there’s maybe seriously they say maybe wrong, urge you yоu then I to consider going go. persons may right. I am other That’s as far as whether the verdict; telling you you bring I’m I never done have to me a have now; say you that and I won’t I think that with is do but do what I. here, say, K., go conscientiously involved and what at stake I ‘O. can’t *4 forget get try you, you agree I can home and it.’ have to to a verdict from if If, afternоon, again, say just ‘Jqdge, a later on verdict. Sometime this you keep night long us can’t arrive at a verdict. You can here all and all food, going bring you verdict,’ tomorrow without and we are still not to a going way you. too, person, I’m not to be that with I a reasonable but I am. you try any questions, further, have to ask to a little Mrs. Rice. Are there disclosing you anything you say how stand —is there would to like (cid:127) this time?' Jury: No. “Foreman any among you Is there a see show of hands —Is there “The Court: —let’s you. of the twelve of that thinks that a verdict be reached? “A Can we still ask for some information this? after mor§ Juror: Surely. “The Court: up. thing ought cleared “A There is one to be Juror: said, dispute you means as what all If are in to somebody “The Court: my say get up. you dispute as what instructions that cleared If are in to —and they may legal they yet, language, be-—-and have to I know you you understand an let me understand. If
hard don’t bothering you. anything help- If there is I can do to what it is that is you, permitted you coming up sitting which I’m short of there do, unjust anybody want verdict. I don’t want I wаnt to do it. I don’t go tonight sleep agreed bring in a verdict that he T can’t say, home right’ you try and it’s I to ask a little bit verdict but do have further a to arrive at verdict this case.” to the court’s remarks as objected being counsel Appellants These were overruled. moved for coercive and mistrial. at 3:05 At p. resumed its deliberation 3:45 m. p. Thе m. jury and at its request to the courtroom returned was read to it. The jury again Haith and another witness Samuel at 5:05 p. resumed consideration summoned! m. occurred: following the courtroom where the smile, least, you One can or two still so it could “The Court: Foreman, situation, Madam has the worse. what is the arrived at jury verdict? Jury: “Foreman of Nо. you any progress being “The Court: Do made? Jury: “Foreman of the No. you you “The Court: Do think it would be futile to call folks back tomorrow? Jury: Well, now, yes. it stands “Foreman anybody hand Let’s who thinks it would be see worth- “The Court: possibility getting you while and that there would be distinct brought certainly I see to be back tomorrow? five six hands. I’m were discharge you you thinking or five or six of reluctant to four it worthwhile at it.” to make stab another The admonished and excused for the jury duly day. At 9:30 a. m. the next roll call day the of the jury was had and! the following the foreman made announcement: Honor, I have “Your been asked member of to have our in- They help structions our oath re-read to us. seem to think it will us to- to a come conclusion.” and, objection, over formal oath instructions The The retired at-9:48 a. m. to the to the reread room guilty. a. m. reached a verdict of and at 11:05 before us is whether giving question additional embodied the court’s initial instruction remarks constituted the jury. coercion
247 annotation (see novel is not question difficult sеrious and We cases). our own 177, some discussing A. L. R. 2d 100 Oswald, form in State v. much same it the recently dealt with circum There, the particular under 251, 2d 197 Kan. 417 P. 261. known commonly instruction stances, the of an additional giving 492, 41 U. S. States, 164 v. United as the Allen Allen charge (see prejudicial not to constitute 528, held L. ed. 17 S. Ct. 154) instruction was a belated of such error. Admonition as to use pointedly expressed. decision-making in its
It is the the guide jury duty judge abuse never But he must instructions. process by giving proper might it this office the into decisions by coercing jury making n otherwisemake. He must never do to violate anything therefor. disagree free men to being penalized three than less In the case at bar the had deliberated jurors reach decision. hours when announced their inability them requiring discretion in judge was well within his declar- them and excusing deliberate a of time before longer period doing language a mistrial. ing improper But we he used cannot so. in Oswald beyond His remarks went those used our on them. put approval however, declaring
Such is not tantamount revers- disapproval, 248, den. 116, cert. ible In State v. 218 P. 2d Neff, error. 90, held that 632, U. L. 71 S. Ct. this court S. 95 ed. constituted an instruction giving whether such determining error, existing circumstances reversible entire light time it and its effect given, probable record are to be considered. it, as feature in following objectionable
Immediately every another, forth, thе instruction in one emphasized, set already At or surrender his convictions. that no juror compromise division the numerical did given the time was asking One majority. juror responded, the view did After some deliberation it more information. could seek be read to it. The two witnesses request At excused matter further. the time it was then pondered indicаted a show of hands they thought five or six the night time. with more arriving at verdict there possibility rereading after further consideration and morning The next reached a verdict. oath the of the instructions *6 effect; the Manifestly coercive judge’s remarks had no immediate there was no return aof verdict and none reached prompt was the day the remarks were made. Final reached- agreement was only after deliberation, further substantial after had the jurors instate-, had reread to evidence, them highly pertinent as well as the oath, tions and and after being overnight excused from trial.' the Overall, twenty hours elapsed from the time of the supplemental! instructiоn to the verdict. These circumstances negative thought- that anyone was coerced or stampeded into his changing viewpoint- Viewing the instruction in perspective arewe convinced whole record indicates it was coercive so as to constitute revers- ' ible error and we so hold. i
The and sentence judgment are affirmed.
APPROVED BY THE COURT. J., dissenting: I must respectfully dissent from holding-’ Fatzer, in the (5) syllabus and the corresponding portion the court’s disclosed; The court opinion. has concluded that under the facts record, by the district judge’s belated instruction and subse- quent events did not coerce the jury so as to constitute reversible: error. I do not agree. condemn lawyers
We for making statements to а jury not within with; of the case. issues We should be much more careful respect to similar statements made a district judge. In the' case, instant the judge referred to the expense trials, particularly- in connection awith retrial of the appellant if agreement was not reached. That had nothing to do with the question of the apрellant’s: or . guilt innocence as disclosed by the evidence. I have previously my stated disapproval anof Allen or “dyna mite” instruction in my Oswald, dissent State v.
263,
In the that of a trier of the facts with own position in view unwarranted clearly analogy obviously improper a unanimous entitlement of accused the constitutional Likewise, conviction. peers of twelve of before by jury addressing district use of term “pigheaded” subjected juror No was highly improper. More- convictions. his honest adhering censure or ridicule for time over, long period reference to keeping veiled any real made. left free act A should be the district court. part coercion on the seeming substantially beyond went those district remarks judge’s objectional of such nature it In judgment they Oswald. my *7 the result was coercive. I would the conclusion escape impossible new trial. grant reverse the judgment