40 P.2d 384 | Kan. | 1935
The opinion of the court was delivered by
John Olthoff, charged with the murder of his wife at their home in Independence the night of May 9, 1933, was tried, found guilty of murder in the first degree, and sentenced to life imprisonment. He has appealed, and complains of rulings of the trial court relating to the admission of evidence and the examination of witnesses, and contends the verdict is not supported by the evidence.
The facts disclosed by the record — as under the evidence the jury was entitled to find them to be — many of which were not controverted, may be stated as follows:
John Olthoff and Bertha Ritter, three years his senior, were married in 1911. Two children were born to them; a son, Martin,
Never a demonstrative couple, Mr. and Mrs. Olthoff, to their friends and neighbors, appeared to get along together with reaspnable harmony, and there is no evidence of a passionate fuss or quarrel between them. For three years prior to the homicide they had not occupied the same bed. For some months, perhaps a year and a half, prior to the homicide defendant had been paying some attention to and spending some of his spare time with a widow, Mrs. Stucker, who worked in a store around the corner and a few doors from the store in which he worked. The rear of the two
The home occupied by the Olthoffs at the time of the homicide is of the bungalow type. It faces west on Sixteenth street, paved thirty feet wide with brick. It sits back from the street about twenty feet. There is a grassed yard in front, but no sidewalk along the street. North and east of the house a short distance is a flower bed about seven by nine feet, which had been spaded up preparatory to planting, the ground of which was loose and dry. South of the house a few feet is an east-and-west alley, sixteen feet wide, surfaced with gravel. North of the house, about forty feet, is the other bungalow owned by Mrs. Olthoff,. situated on the same lots, facing north on Laurel street, the bedroom being at the south. It was then occupied by O. G. Griffin and family. These two houses, with their yards and appurtenances, occupy the space for half a block along Sixteenth street from Laurel street south to the alley. Between the two bungalows is a cement driveway from Sixteenth street east to a double garage near the east line of the lots. This driveway is widened to the south, so as to permit a car to stand just north of the middle and front portion of the Olthoff house. Across the south half of the front of the Olthoff house is a porch, eight by fourteen feet, partially extending into the house proper; back of that is the living room; back of that the bathroom, with approaching hallways, from which stairs lead to a rather low attic, unfinished, except that it is partly floored, and was used for a bedroom, occupied the night of the homicide by the daughter, Helene Olthoff; and back of the bathroom and hall is a bedroom in the southeast corner of the house, occupied that night by the son, Martin Olthoff. On the north "side of the house, from the front, is first, the dining room, back of that the kitchen, about midway of the house from west to east, from about the center of the north side of which stairs lead to the cellar, and back of the kitchen is a bedroom, on the east end of the house, occupied that night by Mr. and Mrs. Olthoff. North of this bedroom is a porch, about fourteen feet long east and west and about
The evening of May 9 the family had supper at home soon after
When Mr. Griffin and the two police officers went to where Mr. Olthoff was on the cement driveway and went into the house with him he was dressed in light-colored, almost white, pajamas, and was barefooted. In going from the kitchen to the bedroom they passed the daughter, Helene, in the hall. The bedroom was lighted. Blood from the wound was about Mrs. Olthoff’s head and in the depression in the pillow, and some of it had splashed to the ceiling directly overhead. An officer asked Mr. Olthoff what had happened. He said some intruder came in there and .murdered his wife. He was asked if he didn’t have a gun around there for his own protection in a case of that kind. He replied: “No, officer, I have never owned a gun in my life, other than that old shotgun that you see
Defendant’s story of the intruder was told at different times with variations. A cousin to Mrs. Olthoff, who was notified of the tragedy, came to the Olthoff home the afternoon of May 10 and talked with defendant, who took her into the bedroom and explained to her how it happened. She testified, when asked to state what he said:
“Well, he said he seen a dark object standing at the foot of his bed and he said slowly this dark object walked between the bed to the dresser and he lifted the jewelry box and it made a little noise and of course Bertha turned and raised on her elbow and the robber shot twice. He said then the robber went to the door and shot at him and his nerves gave way and he jumped up and followed the robber to the alley.”
The witness talked with him about various phases of the matter, and had him repeat the story to her so she could remember it, which he did as many as three times, always the same, or substantially so.
To another witness he showed the hole in the bedroom wall, the key on the floor, the hole in the screen, and blood spots on the bed
To another he said he was awakened by the shot, raised up in bed and a shot was fired at him from the bedroom door; that the fellow had a flashlight down toward the floor; that he jumped out of bed, followed the fellow through the kitchen, out of the door and down the driveway to the street and to the alley south of the house, looked both ways, but saw no one, and returned and holloed for help.
To another he said he was aroused by a shot or some noise and rose up on his elbow and “that fellow took a shot at me and hit the wall;” that he saw the form of a man standing at the foot of his bed and that the man took money from his overalls hanging on the closet door.
On this point defendant, at the trial, testified that after théy retired for the night he went to sleep; his next conscious moment was when the shots were fired.
“There were two at first which were close together, something like ‘bang-bang,’ then a few moments later there was a third one, fired from' near or about in the entrance that goes to the kitchen. I could see a light from the flashlight onto the floor, pointing down on the kitchen floor about by the door post.”
That he was in bed when the third shot was fired, and not fully awake, but was getting up, excited and without a clear conception of what was going on; that as quickly as he could come to himself and realize enough to get up he started through the bedroom toward the door, feeling his way out and into the kitchen, over to the kitchen door and onto the porch, out of the screen door; that he looked between the garage and the porch to see if anyone was there and then started down the driveway toward the west, where his car was, and looked back of the car to see if there was anybody hid there, and not seeing anyone he started on toward the street; that he went as far as the street, but is not sure how much farther; that he looked in every direction, but saw no one.
“Then, I ran back into the house, switched on the light as I went into the kitchen and into the bedroom and turned on that light and saw where Bertha had been shot. A big bloody spot on her left side. I ran out excited over towards Griffin’s door, their kitchen door, hollering for Griffins and Tuckers and Mr. Griffin answered then and said, ‘What is the matter, John?’ After he had hollered I ran over to his bedroom window and told him. He said, ‘Well,*81 are you shot?’ I said, ‘No, Bertha is shot.’ Then he said, ‘Well, I will be over right away.’ He said, ‘Do you want me to call the doctor?’ I said, ‘Yes, call the doctor and the police quick,’ and he asked me then which doctor. I said, ‘Any doctor.’ I went back then into the house and he was over then before very long.”
That he then called his son Martin and his daughter Helene. He further testified that he never saw any intruder in the house, or out of the house, in any room, or any place. It was shown on rebuttal that he testified at a former trial: “I was wide awake by the time the second one (shot) was fired.”
Defendant, while a witness in his own behalf, admitted his immoral relations with Mrs. Stucker, hereinbefore stated, but contended they were purely commercial in character; that he paid her each time she permitted him to satisfy his sexual desires; that his conduct was not prompted by love for her, or similar motives, nor by lack of love and respect for his wife. As tending to offset this, in part at least, there was testimony to the effect that on the evening after he had been arrested and given bond, about three weeks after the homicide, he was observed following Mrs. Stucker and seeking her company. In this connection we should state, in fairness to Mrs. Stucker, that when confronted by the county attorney with defendant’s story of his immoral relations with her, she positively denied all such immoral conduct, and told a story of her acquaintance and relations with defendant and his family which was entirely consistent with such denials. Although she was not called as a witness by either party, her statements containing such denial were placed in evidence.
Word of the tragedy spread rapidly. Officers, relatives and others came to the Olthoff home. There is testimony that there was some discussion in the presence of defendant about additional investigation, and defendant said: “I won’t spend no money.” His'brother, Henry Olthoff, who was present, spoke and said: “I will give $50 to get the dogs down here.” Defendant said: “I don’t want to have nothing to do with it.”
About two days after the homicide defendant called the attention of his daughter to some blood spots on the right sleeve of the pajamas he wore the night of the tragedy and asked her to wash them out, which she did. There was testimony that these blood spots had the appearance of the blood having been splashed on the cloth.
A witness, to whom defendant explained what had occurred, asked
A witness called by defendant testified that about 11:30 o’clock the evening of May 9, while riding in an automobile on Sixteenth street past the Olthoff house, he observed what he judged to be a man standing on the step leading to the back door of the screened-in porch. He could see his head and shoulders above the top of the automobile, standing north of the house, and through the screen, but could not distinguish his features, and it may have been the defendant. There also was testimony by a young couple who had attended a dance the night of May 9 and who were walking the few blocks to the young lady’s home about ten minutes after midnight. While walking west on the south side of Laurel street, having passed Fifteenth street, they saw ahead of them, perhaps one hundred feet, a man standing on the sidewalk on the south side of the street. This man crossed to the north side of Laurel street about
Mrs. Olthoff died intestate. Defendant proceeded promptly to have himself appointed as administrator of her estate. Respecting this the evidence tends to show that while he left to his attorney the steps to be taken, he urged prompt action. In the application for the appointment, $8,000 was stated to be the approximate value of the personal estate. Defendant was appointed as such administrator, but some time after his arrest he resigned and another person was appointed as administrator.
This statement of facts necessarily omits many details. The testimony was conflicting as to some of them, and as to these we have stated the facts as the jury was entitled to believe them. Many of the facts were not controverted, and as to these the parties seek to draw different inferences. It was, of course, the function of the jury and the trial court to weigh the evidence, pass on the credibility of the witnesses, and to determine the proper inferences to be drawn and conclusions to be found from the evidence. Some further facts may be stated in discussing the legal questions presented, which we now proceed to do.
Appellant first contends that the court erred in permitting to be asked and answered a certain hypothetical question respecting what would be indicated by the fact that Mrs. Olthoff’s muscles were fully relaxed at the time she received the fatal blow of the shot.
“Due to the marked amount of destruction of the brain there should be no reflex action of the muscles, and they would remain in the condition in which the patient was when they were shot.”
No serious objection was made to this question and answer. This further question was asked:
“Assuming that a person should be suddenly disturbed out of a sleep by some extraordinary excitement or something, would you expect the muscles to become rigid or remain relaxed?”
Over defendant’s objection the witness was permitted to answer, and said:
“Not all the muscles will become rigid; an individual will naturally go into protection, and those muscles to protect themselves will become rigid.”
Appellant contends this was an improper hypothetical question, and the answer should not have been received. The point is not well taken. A party may propose a hypothetical question, not only for the purpose of bringing out his theory respecting the matter, but to develop an answer against the theory of the opposite party. (See Commercial Travelers v. Barnes, 75 Kan. 720, 90 Pac. 293; State v. Buck, 88 Kan. 114, 127 Pac. 631; State v. Elftman, 116 Kan. 214, 226 Pac. 795.)
Appellant next contends the court erred in admitting in evidence the testimony of the three young ladies to the effect that defendant invited them to take rides with him, at times and under circumstances which indicated his motives were immoral. It was the state’s theory that defendant had grown tired of his wife, whose long and serious illness rendered it impossible for her to satisfy
Appellant complains that the court permitted counsel for the state to cross-examine one of its own witnesses, Helene Olthoff, daughter of defendant and Mrs. Olthoff. The tide of events had placed her in an exceedingly embarrassing position. When questioned by the county attorney, while he was investigating the homicide, she was frank to state what she knew. The county attorney regarded her information important, and had used her as a witness for the state on the preliminary examination and on the former trial of this case, when there had been a hung jury, and her testimony was in harmony with her statement previously made. When called as a witness on the trial from which this appeal is taken she had not testified long until discrepancies appeared on material matters compared with her former testimony. Perhaps these were occasioned by the fact that for a few weeks directly prior to the last trial she had been living at home with her father. But whatever the reason, more of such discrepancies developed. The county attorney advised the court he was taken by surprise by the testimony the witness was giving and asked permission to cross-examine her. After being advised of the testimony formerly given by the witness the court granted the county attorney’s request. In the course of this cross-examination the witness reluctantly admitted the facts were as stated by her in her former testimony. There was no error in the court’s ruling permitting this cross-examination. Indeed, any other ruling would have been erroneous.
Complaint is made that the court unduly restricted the cross-examination of this witness by defendant’s counsel. He sought to bring out matters not referred to in the direct examination, some of which were wholly immaterial, and the state’s objections were sustained. The court advised defendant he would be permitted to call her as his witness, and if this were done she would be permitted to testify to any material matter. Defendant later called her as a witness and she was permitted to testify to all matters concerning which she was interrogated. There was no error in the court’s ruling in this respect.
Appellant argues the evidence is insufficient to support the verdict. We shall not restate the evidence, and need only to point out
On this point appellant cites and largely relies upon People v. Lamson (Cal.), 36 P. 2d 361. Several distinctions between that case and this might be pointed out. We will mention but three of them: (1) There defendant’s story of the tragedy was at all times consistent and was found to be accurate in every detail capable of being checked; here defendant told the story differently every time he related it, and many details of it were controverted by the testimony of witnesses apparently trustworthy. (2) There the principal controverted question was whether defendant’s wife was murdered, or whether her death resulted from an accidental fall; here there is no question about the fact that the wife was murdered —even the evidence of defendant establishes that fact. And (3), in that case, the supreme court of California appears to have weighed the evidence and exercised an independent judgment as to the credibility of witnesses; in this state it is not the practice of this court to do that — we examine the evidence only to see there is sufficient competent evidence to support the verdict. In this case we find an abundance of such evidence.
Considering the nature of this case, the legal questions presented may be classified as being quite trivial, although no' doubt they are the most formidable appellant’s counsel found to present. No contention is made that evidence properly admissible was excluded, except as to one question, the answer to' which already was in evidence and concerning which there was no dispute. Neither are any objections made to the court’s instructions, nor any contention made of misconduct on the part of the jury, the prosecuting attorney, or the trial court. It seems clearly to appear that defendant had a fair trial and that a just result was reached. .
There is no error in the record, and the judgment of the court below is affirmed.