State v. Zimmer

The opinion of the court was delivered by

William Frederick Zimmer was convicted of the offenses of kidnaping in the first degree, with harm inflicted (K. S. A. 21-449) and of murder in the first degree (K. S. A. 21-401). As punishment the jury imposed the death penalty for the kidnaping charge and life imprisonment for the murder. The trial court denied appellant’s motion for new trial, and adjudged sentences in accordance with the jury verdict, from which defendant Zimmer has appealed.

The charges grow out of the abduction and slaying of Gladys Cora Johnson, a Negro girl aged seven years.

Appellant Zimmer’s contentions of error will, so far as practicable, be dealt with chronologically.

The first contention is based on the failure to appoint counsel for appellant during a particular period of time. To avoid possible misunderstanding in this area, certain background facts should be stated although all are not directly pertinent to the precise error asserted.

The offenses allegedly occurred on Saturday, November 14, 1964. Appellant, forty years of age, a resident of Kansas City, Kansas, was arrested about 9:00 p. m. on Sunday, November 15, at Marysville, *480 Kansas. At the time of this initial apprehension he was advised by an agent of the Federal Rureau of Investigation of his right to have the services of an attorney and to consult with anyone else he chose. He indicated his understanding of his rights and no complaint is made as to the character of advice given. Later the same night and prior to the time he was brought by police to Topeka appellant told his brother-in-law, a resident of Marysville, to call appellant’s wife and have her get a lawyer for him. Appellant was brought to Topeka the early morning of Monday, November 16. On the same day while in jail in Topeka, he was consulted by an attorney from Kansas City, Kansas. It appears this consultation was the result of the request relayed to his wife.

On November 19 the judge of the city court of Topeka, the examining magistrate upon the charges filed, in accordance with custom in Shawnee county in all felony cases, appointed Mr. Sam Crow, a practicing attorney at Topeka, counsel for appellant. This appointment was for the purpose of preliminary examination which was held November 25, at the conclusion of which appellant was bound over for trial to the district court of Shawnee county. On December 21 appellant filed in the latter court an application for the appointment of an attorney. This instruments was as follows:

“Application for Appointment of Counsel

“Comes now the defendant and applies to the Court for the appointment of counsel to represent him in the District Court of Shawnee County, Kansas.”

On December 23 Mr. Crow was appointed by the district court to represent appellant upon the hearing of the application. Hearing was held December 29 before the judge of the division then in charge of the criminal docket. At the hearing appellant offered no evidence in support of his application, choosing to rely on the written request. The district court then directed that appellant be examined under oath by the prosecution, which was done. In substance appellant testified he was employed as an engineer by the Union Pacific Railroad Company at a gross salary of about $300.00 every two weeks; that his wife was employed by the same company at a salary of about $400.00 per month; that he owned jointly with his wife his home in Kansas City, Kansas, of a value of about $10,000, furniture, and a 1954 Plymouth, and that his wife owned a 1958 Volkswagen, all free of indebtedness; that he had approximately $2,000.00 on deposit with the railroad credit union, about *481 $800.00 in a bank account, and government bonds in an amount between $250.00 and $500.00; that after these criminal charges were filed he gave a power of attorney to his wife permitting her to transfer title to the property; he testified he did not know what the purpose of any transfer was, that his wife “asked for my cooperation on it and that’s what I did.”

Appellant further testified he had not contacted any attorney and no attorney had refused to represent him. The prosecution introduced income tax records showing that for the year 1962 appellant had wages of $9,360.24 and his wife $5,154.80, and for the year 1963 appellant had wages of $8,448.74 and his wife $5,137.40.

Based upon the foregoing the court found appellant was not indigent and was able to employ counsel of his own choosing, that appellant had made no effort to employ counsel and there was no evidence any counsel had refused employment, and the court on December 3, 1964, denied appellant’s application.

Although the record proper does not so disclose, we are advised by the prosecution in its brief, and it is not controverted, that on the next day, following this decision appellant’s wife filed suit in district court of Wyandotte county, Kansas, against appellant asking for divorce and division of property; the county attorney of Shawnee county attempted to intervene in the divorce action for the purpose of having a portion of the marital property set aside to defray the expense of appellant’s defense in this case; this attempted intervention was denied.

Commencing with the January, 1965, term of court the judge of the second division of the Shawnee county district court assumed charge of the criminal docket and subsequent proceedings herein have been in that division.

On January 25, 1965, the court appointed a commission of three doctors to examine appellant’s mental condition. On January 28, 1965, the commission reported it found appellant “not insane, an idiot, and/ or an imbecile and is in our opinion able to comprehend his position and make his defense in the cause now in hearing.”

On February 2, 1965, the court held a hearing on its own motion to determine whether counsel should be appointed to represent appellant. ■ The court found appellant did not have counsel of his own choosing and had not employed counsel and further, that appellant had advised the court he did not intend to employ counsel. Thereupon the cotut appointed as counsel for appellant *482 Mr. Elwaine F. Pomeroy, a practicing attorney at Topeka. Trial commenced March 15, 1965.

As stated, appellant filed his request for the appointment of counsel December 21, 1964; the initial application was denied and it was not until February 2, 1965, that counsel was appointed for him. It is upon the December failure to appoint counsel and the consequent absence thereof during this six week period that appellant bases his first contention of error. He asserts he was entitled to assistance of counsel at every stage of the proceedings and that this right was denied him during the period between December 21, 1964, and February 2, 1965.

There is no question under both our state and federal constitutions as to the entitlement of one accused of crime to the effective assistance of counsel in his defense. It is now well established this entitlement extends to every critical stage in a criminal proceeding where there may be a substantial loss of advantage to the defendant, and it may not be denied one who because of indigency is unable to employ counsel. This right may be waived, provided the waiver is made voluntarily, intelligently and knowingly.

We are aware of no authority for the appointment of counsel at state expense for one financially able to employ counsel absent other compelling reasons. Our statute (K. S. A. 62-1304) makes provision for such appointment only if the accused be not able to employ counsel. It expressly authorizes withdrawal of court-appointed counsel upon knowledge that the accused or his relatives or friends are able to employ counsel. Implicitly, where financial ability is concerned, our decisions have limited the benefits of the statute to indigents.

Our statute for appointment of counsel is similar to Rule 44 of the Federal Rules of Criminal Procedure. In administering this rule the federal courts have held one who is financially able to employ counsel is not entitled to have counsel assigned by the court (see 4 Barron Federal Practice & Procedure, Rules Edition, § 2461).

Appellant was of mature age, competent, with full opportunity to contact counsel, it is not contended otherwise), and he had substantial monetary resources. The guarded nature of his written application for counsel is patent, no reason being given for the request.

We would not undertake to prescribe financial standards of eligibility for appointment of counsel which would be applicable to all offenses in all districts under all conditions. These might *483 well vary dependent upon the particular circumstances. Suffice it to say here we think the trial court in December acted properly in refusing to appoint counsel upon the showing made. Appellant argues if counsel should have been appointed in February, counsel should have been appointed in December. This does not necessarily follow. Appellant was shown not to be an indigent in December— the record contains no showing on the subject in February and the propriety of that appointment is not an issue.

It should be noted this was not a request for counsel made before an interrogation phase of a criminal proceeding where the relationship of the financial condition of an accused to the scope of the right involved might be questioned. Nor is there any showing that in the interim period when appellant was without counsel there was any critical proceeding had, plea taken, incriminating statement made or defense lost, or of prejudice of rights in any way. Appellant merely speculates something more favorable to him might have developed had he had an attorney. Nor does the fact that a sanity commission was appointed and acted during the interim when appellant was without counsel present any basis for relief (State v. Andrews, 187 Kan. 458, 357 P. 2d 739, cert. den. 368 U. S. 868, 7 L. ed. 2d 65, 82 S. Ct. 80). This contention of error may not be upheld (see State v. Lee, 197 Kan. 463, 419 P. 2d 927, cert. den. 386 U. S. 925, 17 L. ed. 2d 797, 87 S. Ct. 900).

Appellant’s next contention of error involves a pill taken from him by police officers at the time of his arrest and which came into custody of the Kansas Bureau of Investigation. Allegedly the pill was of a type appellant had procured from a layman at his employer’s first-aid station and which he had been taking for the purpose of curbing his appetite in a weight reduction effort. On March 9, 1965, appellant’s counsel orally requested the court to order the bureau to make an analysis of the pill, indicating he had previously understood through a Topeka police officer such an analysis would be made. The principal reason advanced for the request was to save the state the burden of expense of private laboratory analysis. The prosecution opposed the request. The court took the matter under advisement until the following day when it heard the matter further. Additionally counsel indicated a time factor in getting the pill analyzed privately. The court denied the request. In making its ruling the court remarked:

“The Court: All right. The County Attorney is completely in charge of the prosecution of this case for the state. And no policeman has any authority *484 to make any commitment he will do anything for you in preparation of your defense. Regardless of what some policeman may have intended to do, the County Attorney obviously has no intention of making an analysis of some pills. And I am satisfied that he is not required to. I am satisfied that if you think tlie pills have any relevancy to the lawsuit and want them analyzed for use by you in tlie defense of this case that you are going to have to do it yourself.

“The Court: There is no valid agreement to have the pills analyzed and they’re not about to have the pills analyzed. You can’t make an agreement with a policeman even if he is an official in the police department that he is going to do something to help you prepare the defendant’s case for trial. The County Attorney is the one in charge of this case and I don’t believe the County Attorney has made any commitment to you, there is no evidence that he has. That will be my ruling. If you want them analyzed you will have to analyze them yourself. That’s my best judgment.

“The Court: I mean [you] have to have them analyzed yourself.”

Assuming relevance of an analysis of the pill (which appellee does not concede upon the showing made) we see no reason to declare it was essential that such analysis be made by a state law enforcement agency rather than by private individuals or agencies. The record affirmatively reveals that counsel for appellant was aware he might have the pill analyzed at public expense if he desired to do so. It also reveals this is not an instance of suppression of evidence by the prosecution. Counsel was never denied inspection or custody of the pill nor did anyone allied with the prosecution do anything to prevent him from having his own analysis of the pill made. The record further reveals counsel had other pills of the same kind which he had previously secured at appellant’s home; we cannot tell whether or not these were ever analyzed.

At most the matter lay in the sound judicial discretion of the trial court and we see no abuse thereof in the ruling made.

On March 11, 1965, the state filed a motion to endorse the name of an additional witness on the information pursuant to K. S. A. 62-802. The same day counsel for appellant was orally notified of the requested endorsement and was given the name and address of the witness and a summary of her expected testimony. Hearing was had on the motion March 12 and, over objection, the request was allowed. The witness was a clerk in a liquor store in Wamego whose trial testimony was very incriminating to appellant.

As stated, trial commenced March 15. It appears the investigating police officers took a statement from the witness as early *485 as some time in November; the county attorney knew of her existence but first interviewed her March 11.

Appellant assigns the ruling permitting the endorsement as error.

K. S. A. 62-802 provides in pertinent part the prosecuting attorney shall endorse on informations filed by him the names of witnesses known to him at the time of filing and, in addition, names of other witnesses who afterward become known to him, at such times before trial as the court may prescribe. The statute is designed to protect a defendant against being taken by surprise at the trial. In applying it this court has consistently held such endorsement, even during trial, rests within the sound judicial discretion of the trial court and that, where permitted, material prejudice to the right of the defendant must be clearly shown before- it constitutes reversible error (see State v. Poulos, 196 Kan. 287, 411 P. 2d 689, cert. den. 385 U. S. 827, 17 L. ed. 2d 64, 87 S. Ct. 63).

We think no such abuse of discretion is shown. Counsel for appellant was notified four days in advance of trial as to the witness and the expected testimony. The record discloses counsel did interview this witness prior to the commencement of trial; it is not shown how, by reason of the late endorsement, there was any disadvantage to appellant or how there would have been greater safeguard for his rights by reason of an earlier endorsement. In arriving at the conclusion reached we do not overlook counsel’s request for continuance, to be discussed next.

At the conclusion of the foregoing hearing on March 12, the following occurred:

“Mr. Elwaine Pomeroy: We would respectfully move the Court for at least a one week’s continuance in the trial of this case so as to allow us to adequately prepare for the defense.”

The court denied the motion, which ruling is assigned as error.

K. S. A. 62-1414 provides that continuances may be granted in criminal cases for like causes and under like circumstances as in civil cases. Continuances in civil cases are governed by K. S. A. 60-240 (b) which provides:

“The court may for good cause shown continue an action at any stage of the proceedings upon such terms as may be just. . . .”

And K. S. A. 60-240 (c) provides the granting of continuances in all cases shall be discretionary. This latter proviso is in harmony with long-standing case law.

*486 In State v. Hickok & Smith, 188 Kan. 473, 363 P. 2d 541, appeal dismissed 373 U. S. 544, 10 L. ed. 2d 688, 83 S. Ct. 1545, this court stated:

“. . . the matter of a continuance in a criminal prosecution is largely within the discretion of the trial court and ... its ruling thereon will not be disturbed unless it has been made to appear that such discretion has been abused to the prejudice of substantial rights of a defendant.” (p. 482.)

(See, also, State v. Latham & York, 190 Kan. 411, 375 P. 2d 788, cert. den. 373 U. S. 919, 10 L. ed. 2d 418, 83 S. Ct. 1310.)

We think appellant’s assertion of error is not well taken. Appellant’s counsel, after his appointment February 2, 1965, assisted by his brother who is a practicing attorney in partnership with him, spent a total of approximately 330 hours in preparation for trial, including investigation, research and interview of all witnesses who testified at the trial. The record of trial reflects this massive preparation. It reveals industrious, zealous, competent and resourceful advocacy in behalf of appellant. Moreover, at the time the motion for continuance was made, no particular reason therefor was advanced, that is, good cause was not shown, and later, upon hearing of the motion for new trial, no showing was made, as it might have been, as to how or in what manner appellant was prejudiced by the denial of the continuance. Again appellant simply speculates that with more time something more favorable to him might have been procured; this is not good cause. Under all the circumstances no abuse of discretion is shown.

Appellant next contends he was denied due process of law in that the state legislature which at its 1955 session added the death penalty to our kidnaping statute (Laws, 1955, Chap. 193, § 1) was improperly apportioned and hence its acts were not valid.

This contention has been answered adversely to appellant in State v. Latham & York, supra, wherein it is said:

“Assuming that the legislature has failed to effect a new apportionment of the districts of its members as required by Art. 10, Sec. 2, nonetheless the acts of such legislative body would be those of a de jure legislature and the members thereof are de jure officers. All the reported decisions sustain the proposition that the fact a legislature has not reapportioned in accordance with the state constitution does not preclude it from making any law or doing any act within tlie legislative competence. (p. 426.)

“The question of the failure of the legislature to reapportion itself in accordance with the mandate of Art. 10, Sec. 2, could have no possible bearing upon the validity of the defendants’ convictions.” (p. 427.)

*487 The remaining specifications of error involve trial rulings, requiring review of the evidence which is summarized as follows:

Prosecution Evidence

Betty Michael, who lived at 915 North Taylor in Topeka, the mother of Gladys Cora Johnson, aged seven, last saw Gladys alive at home about 7:30 Saturday morning, November 14, 1964, prior to leaving for work at a cleaning shop; Mrs. Michael had made arrangements for her three children to stay with a Mr. Eatmon at the Eatmon home at 1335 North Taylor until her return from work; the mother next saw Gladys’ body a week later at a funeral home.

At about 8:00 a. m. a neighbor who lived across the street from the Eatmon home took her dog out in the yard; she noticed three Negro children inside the Eatmon yard — two girls and a boy; she went back inside her home and very quickly thereafter a little Negro boy and girl came to her front door crying and screaming; the boy, who was the six year old brother of Glady, said, “Lady, call the police. A white man took my sister and went that away.” The boy said the man was in an orange car. The neighbor called the police.

On Saturday morning, November 14, an air force sergeant stationed at Forbes Air Force Base was going hunting north of Topeka; while Raveling south on the Brickyard road northwest of Topeka looking for a place to hunt he noticed a car parked in a field about a thousand feet west of the road; he drove over along the side of the car which was a 1954 Plymouth, color light over dark brown; a white man and a small Negro girl were in the car; he had a brief conversation with the man about hunting; the man stated the property belonged to the Browns and that he had permission to hunt; the sergeant noticed the little girl was crying and whimpering; he spoke to her but she did not respond; the Plymouth automobile bore a Wyandotte county license tag which number the sergeant wrote down; he went to a nearby house where he was told the property did not belong to Browns; he returned to the field but no one was there; he went back to the house and at about 9:00 a. m. telephoned the sheriff’s department about the incident; later he identified photographs of appellant’s automobile as showing the same vehicle he saw- in the field; on November 15 he identified photographs of Gladys Johnson as being pictures of the girl he saw in the car, and, out of a group of sixteen, he identified two photographs of appellant Zimmer as being the man he *488 saw in the field; on November 16 he identified appellant from police lineups as the person he saw in the field and at the trial he identified appellant as the same man.

The license tag number jotted down by the sergeant was identified as being registered in the name of William F. Zimmer, 1872 North Thirty-first Street, Kansas City, Kansas, for a 1954 Plymouth sedan.

Sometime between 12:00 noon and 12:30 p. m. on November 14 a clerk at a liquor store in Wamego, Kansas, noticed a car with a white top and a dirty pink or salmon body parked at the curb in front of the store; a white man and a small Negro girl were in it; the girl was staring straight ahead and did not move; the man went into a cafe next door and returned carrying a brown paper bag; as the car drove away the clerk noticed it bore a Wyandotte county tag; at about 1:15 p. m. the same car returned with only one person in it and parked in the store driveway; the driver came into the liquor store and conversed with the clerk about hunting; the clerk testified there were blood stains on his right arm and dry clotted blood around his fingernails; she noticed a “. . . very odd odor. It was something that I — I can’t describe — something like a wild, not wild, but a freshly killed something I don’t know.”

The clerk identified photographs of appellant’s car as similar to the car she saw; she identified appellant as the man she had seen with the Negro girl and who later came back to the liquor store.

On Sunday, November 15, the Topeka police department telephoned the police at Marysville, Kansas, that a kidnaping charge had been filed against appellant and requested his apprehension.

Appellant was arrested about 9:00 p. m. that evening in Marysville by local police and taken to the Marysville police station where an agent of the Federal Bureau of Investigation interviewed him; two bottles of whiskey were recovered from him; appellant appeared to have been drinking but was not drunk; at the time of the initial arrest the officers were looking for Gladys who had not yet been found; appellant’s car was in Marysville; the FBI agent asked appellant, “Would you mind if we looked into your car?”, to which appellant replied, “I don’t mind at all. You can look at any thing I have”; appellant further stated, “You can search anything I have. I have nothing to hide”; appellant also replied to another police officer when asked about looking into his automobile: “Be my guest. Do what you want with it,” that he “had no objection.” Two Marysville police officers, accompanied by appellant’s *489 brother-in-law, took appellant’s car keys, went to his car, unlocked it, and looked inside it and the trunk; the officers were told by the FBI agent to look for Gladys Johnson — that was their principal objective; the officers examined the trunk by flashlight and saw red stains on some newspapers, on a shallow box and on a white cloth covering a shotgun; they saw nothing else unusual and did not notice a hatchet; their only purpose in looking in the trunk was to see if there was a girl in it; nothing was removed from the car.

The FBI agent advised appellant of the kidnaping charge and, in the presence of his brother-in-law, advised him of his constitutional rights and “made sure that he understood them himself”; he advised appellant he did not have to make a statement, that any statement he made could be used against him and that he could consult an attorney or anyone else; the advice was repeated and appellant reiterated that he understod; appellant gave the agent a statement as to his whereabouts on Saturday, November 14.

Later, while still at Marysville, appellant gave a similar but more detailed statement to a Topeka police officer; he stated after getting off work on Friday, the 13th, he had purchased shotgun shells and whiskey in Kansas City; after arriving in Topeka he purchased more whiskey and visited various beer taverns, drinking beer and whiskey; later he did some drinking with a woman and man whom he did not know; the next thing he remembered was waking up alone Saturday morning a block south of the North Topeka fire station; he took a drink and drove west, stopping at Silver Lake around 7:00 or 7:15 a. m. to telephone his brother-in-law at Marysville to go on hunting as he would not be able to get there; then he went to Manhattan, stopped on the west side of Tuttle Creek lake, then went on toward Concordia, hunting pheasants on the country roads near there; he shot two and put them in the car; later he threw them away near Clifton; he went to Hanover,, then called a lady friend at Marysville, picked her up and then went to a motel at Washington where he spent the night; the next day, Sunday, he and his lady friend spent the day on the sideroads. hunting pheasants but did not see any; after talcing her home he-went to find his brother-in-law who informed him the police were-looking for him.

Early Monday morning appellant was taken by Topeka police to the Topeka jail; before he left Marysville he telephoned his. brother-in-law and requested that he call appellant’s wife and tell her he was going to Topeka and to get him a lawyer.

*490 Late Sunday night or early Monday morning appellant’s car, which had been locked up, was towed to Topeka where it remained in continuous police custody.

On Monday, November 16, an attorney from Kansas City, Kansas, consulted privately with appellant at the Topeka City jail.

On the same day a search warrant for appellant’s automobile was obtained and a copy served on appellant; the car, which had been kept locked, was thoroughly searched by the laboratory supervisor of the Kansas Bureau of Investigation and the contents removed and invoiced; when the trunk lid was opened the handle of a hatchet was visible but the entire hatchet was not, it being behind the spare tire; there was a reddish substance on the hatchet; visual observation disclosed the presence of hair on the hatchet; because of several stated reasons no attempt was made to take fingerprints from the hatchet; among items removed from the automobile were the hatchet, a piece of newspaper, a cardboard box, a pair of undershorts and a pair of trousers containing a white handkerchief which was not touched so that any evidence would not be disturbed, a pair of dress shoes and sweepings from the right front floor of the automobile; the custody and transportation of these items were traced to FBI laboratory examiners at Washington, D. C.

On Tuesday, November 17, after appellant had been visited by a lawyer and his wife, he was further questioned by police, one of whom testified:

“So at this time the Defendant says, ‘Well, I do remember being in the pasture north of town with a little colored girl and she was crying.’ And Major McKinney told him go ahead. At this time he asked him if he remembered anyone coming around the automobile anything other than him and the little colored girl being in the area north of town. He said, ‘No, he didn’t remember anybody else. The next tiling he remembers,’ he says, ‘He went west and possibly a little north on gravel roads. He arrived at a school house. He doesn’t know how far distance it was from the initial point where he said he had the little girl with him.’ Said, ‘This school house would either be a red or a buff, some color like that. It was not a white. Anyway it was an off shade he described it.’ He said, ‘It was on a graveled road on an upland grade sort of and in describing this school house,’ he said, ‘The inner door has a lock on it.’ He said, ‘By the inner door he meant it was an alcove or foyer, whatever you want to call it where the students go hang their coats up on the outside. There was hooks there.’ He says, ‘He remembers getting out of the car and walking into this foyer. The little girl is still in the car right at this time. He was scared and hunting a place to hide.’ This is what he said at this time. ‘He comes back out,’ he said, ‘And gets in his car and goes west and possibly north again. He doesn’t know how far. And he *491 comes to a field. He describes this field as being a field where you turn in off of a graveled road,’ and he said, ‘As you turn in,’ he said, ‘There’s a dry wash in the right-hand side. This dry wash is bordered with trees.’ He said, ‘It’s a winding dry wash.’ He said, ‘And I drove clear to the end of it where you couldn’t be seen from the road.’ He said, ‘There was a small terrace right next to this dry wash,’ and at this time he was asked if there was a machine made or a natural terrace like they do make in fields. He said, ‘He thought it was man made, but he wasn’t certain. He described this field.’ He said, ‘This field was sloped a little bit and it was either alfalfa or wheat in this field other tiran the tree lined dry wash.’ He said, ‘He next remembers that he looked over at the little girl and she was still sitting here in the front seat. He takes a drink of whiskey, leaned back in the seat and this is the last he remembers until he wakes up.’ He says, ‘He don’t know how long it is. He don’t know what time he got there, but then he wakes up and on wakening,’ he said, ‘It’s getting dusk. That the sun. is in his eyes and the little girl is not in the front seat, but he looks back and the trunk lid is up. He gets out of the car and walks to the trunk lid and the little girl is laying inside the trunk.’ He said, ‘By looking at her, the wounds and the blood about the head and her body was cold,’ he said, ‘It was getting cold. That he knew that she was dead.’ He said, ‘He picked her up. She had on a pink dress.’ He said, ‘He picked her up and took her to the terrace that he was parked beside on the dry wash there and laid her on the back side of the terrace on this dry wash that bordered this dry wash.’ He was asked at this time, Major McKinney asked him at this time if he had sexually molested the little girl, and he said, ‘I don’t know.’ He said, ‘But the tests will show when they find her.’ He was asked if she had any clothing on and he said specifically at this time, ‘That she had the pink dress, but he could not tell, he could not remember whether she had any underclothing on or not.’ He was asked again if he had molested her at any time. He said, ‘He did remember slapping her, in the area north of town because she was crying.’ Also at this time he was asked again about the hatchet. He said, ‘That the hatchet that he was shown the day before did look like his hatchet. He had one like it in other words.’ He said, ‘But he don’t know how it got in the car. He thought it was home in his garage.’ He says — oh, at this time also he said, I believe he said, ‘That his lawyer was going to be mad at him for talking to us.’ But he said, ‘Then he left the field and he drove some more. . .

The officer further testified appellant stated he went to Wamego, then toward Marysville stopping occasionally to remove bloody papers from the car trunk and hide them in culverts and grass; that around 9:00 p. m. he arrived at his brother-in-law’s house at Marysville; his brother-in-law informed him the police were looking for him — he told him “Okay, he would head back for Kansas; City,” but he went west; near Hanover Junction he threw away the rubber mat from the trunk of his car and fired his shotgun twice to substantiate his story about shooting pheasants; then he went to Hanover to call his Marysville lady friend with whom he had a *492 few drinks and later spent the night at a Washington motel; the next day he spent hunting the sideroads for pheasants; he took the lady home that evening and was later arrested at Marysville; appellant stated he wanted to go and help find the little girl’s body.

The following day, Wednesday, November 18, appellant went on the search for the girl’s body but he appeared to have trouble finding the field although he described it in detail; on Saturday, November 21, a hunting party found the dead body of Gladys lying on a creek bank in a rural area about four miles northwest of St. Marys, Kansas.

The Shawnee county coroner, a physician and surgeon specializing in pathology, examined the body at the scene where it was found; the body was clad only in a pink dress and was frozen; there was only a small amount of clotted blood under her head; based upon his examination of the body and the ground under it he was of opinion she was not killed there but was dead not more than thirty or forty minutes when placed there; the doctor performed an autopsy; there were two large crushing blows on the head, which shattered the skull; there were four deep wounds with ragged edges across the neck and shoulder, one of which fractured the spinal vertebrae and spinal cord; death was caused by the blows to the head and spinal vertebrae, any of which could have been fatal; the head wounds could have been caused by a blunt instrument such as a rock, tire iron or hatchet; the neck and shoulder wounds could have been made with the cutting edge of a hatchet such as the one found in the trunk of the appellant’s car; the wounds were made by a chopping type blow; there was no evidence of trauma to the vagina and evidence of sperm could not be isolated in the vagina, rectum or mouth.

Additionally, there were sent to the FBI laboratory the following: A small sample of Gladys’ blood, hairs from her head, her pink dress, and a pair of white coveralls worn by appellant while he tried to cut his wrist at the Topeka jail.

A chemist at the FBI laboratory whose work consisted of examination of body fluids including blood, testified as a result of his examination of the various exhibits heretofore mentioned that the stains on the cardboard box and the piece of newspaper were blood stains of human origin; that corresponding spots on the trousers and the undershorts were blood of human origin; he was unable to determine the blood grouping of the foregoing; that the *493 trousers, undershorts and pink dress were negative for evidence of semen; he identified stains on the handle and blade of the hatchet as being blood stains of human origin, the blood belonging to group O; there were possible blood stains on both dress shoes but this was not definite, nor was it possible to determine origin; the sample of Gladys blood was identified as belonging to blood group O; a quantity of blood on the coveralls could not be typed definitely as to grouping because of the fabric of the coveralls.

A hair and fiber examiner at the same laboratory testified as to his examination; he explained in considerable detail that hairs of three races, Caucasian, Negroid and Mongoloid, can be separately identified and within each race hairs may be further examined microscopically with magnification up to 900 times so that approximately twenty-one separate characteristics or points of identification may be made for the purpose of hair comparison; he described hair composition and the method of analysis; the sweepings from the front floor of the automobile contained both Caucasian and Negroid hair; there were three short Negroid hairs adhering to the reddish substance on the matchet; the handkerchief in the trousers’ pocket contained two fragments of Negroid hair possibly l/16th to l/32d inches long; all of these hairs as well as the known samples of hair from Gladys’ head were analyzed and all possessed the same twenty-one characteristics or points of identification; the witness was of opinion there was only a remote possibility that the hairs in the sweepings, the handkerchief and on the hatchet came from any person other than Gladys Johnson.

Defense Evidence

Appellant testified in his own behalf. He described his family and work background; he stated he did drink and since he had quit smoking he had had a weight control problem; to control his weight he obtained some pills from a fellow employee which he had been taking one in the morning and one in the afternoon off and on for a period of three or four years; in August of 1963, in Kansas City, while enroute to the postoffice in his automobile he was cursed by some children who were blocking the street, with the result he argued with a child’s mother and several days later was arrested on a child molestation charge; this charge was later dismissed; his only other arrests were for peace disturbance and running a stop sign; in January, 1964, he was arrested *494 but the only thing he remembered was getting up from the supper table and waking up next morning in jail.

On Friday, November 13, 1964, appellant got off work at 3:30 p. m. and after doing some chores and buying some ammunition and a half pint of whiskey he started for Marysville where he had arranged to go hunting; around 8:30 p. m. he stopped at Topeka to get more whiskey and then went to three beer taverns where he spent the evening; he met a woman from Phillipsburg and then a man with whom he drank; before midnight he went to the bus terminal but was hazy about what happened thereafter; he thought he went back to the taverns but was not clear; he had a hazy remembrance of going to a colored barbecue tavern in North Topeka; the next thing he remembered was waking up in his car Saturday morning south of the fire station; there was another fellow lying in the back seat; he had not seen this man before; each of them had a bottle; the man indicated appellant had promised to take him to Manhattan; appellant took a drink and started out; at Silver Lake he took another drink and he telephoned his brother-in-law to go on hunting; the other fellow started driving and appellant got in the back seat of the car; he further testified:

“Q. What do you next remember?

“A. Next tiling I remember is urinating by the side of the car, and I looked around, and the rear door was open, and the trunk lid was open about that much. And this pasture was not the pasture that the Airman seen me in, but a pasture that had a pond in it, and this pond was, oh, an eighth of a mile away from the car, but beyond this pond was a house that you could see from where the car was parked. Now that’s the pasture that I was in. And in the trunk was this poor little girl with her feet sticking out of the trunk about a foot.

“Q. What did you do?

“A. Well, I pushed them in the trunk and closed tire lid then got in the car and drove off. This is in the pasture. I had to let myself out through a gate to get out of it, and I stopped and opened the gate, drove out and closed the gate because there was stock in the pasture.

“Q. And then what did you do?

“A. I drove around. I don’t know just what direction I was driving in, thinking what happened to me, and I was — what am I going to do with this body, and I stopped at this school house, in the school. And the school house we found later was white, but I thought it was colored. It was tan colored school house. I got out and walked around the car and into the school house foyer, and it was locked. I got back in the car and drove off and went some distance. I don’t know how far, but I guess it isn’t too far from this school house to this field that had alfalfa or wheat in it and drove back in there, and again I’m not clear on my directions because tire detectives told me I was *495 wrong. I drew them a map of this place. They said, ‘My directions was off.’ After I got to the end of this field I took another drink and I — I must have passed out because I went to sleep. I don’t remember anymore until almost dark when I woke up again. That’s when I got out of the car, lifted up the trunk and laid the little girl along the bank — (did not finish sentence).

“Q. What did you do then?

“A. I seen a lot of blood in the trunk on some newspapers. These newspapers I took with me to use to clean the game with they are always short of newspapers in Marysville. I don’t think they take any regular newspapers. We take the Kansas City paper and had plenty of them, so I always bring some along. Well, the blood was all over these papers, so I thinking I got to get rid of those papers some way so I closed the lid, got back in the car and drove off. Now this is getting dark. It’s getting sundown.

“The Court: Still Saturday?

“The Witness: Still Saturday, Sir. And the next city I remember coming into is the east edge of Wamego. So we had a difficult time finding out where this was because I didn’t remember going through any other towns.”

Appellant testified he did not remember being in the field where the airman saw him; the first time he saw the little colored girl she was in the trunk dead; he had no memory of seeing her alive; he had no explanation why he did not then seek help; after leaving Wamego he started scattering papers along the drainage and weeds until he got rid of them; he finally arrived at Marysville about 9:00 or 9:30 Saturday evening where his brother-in-law told him the police were looking for him; he told his brother-in-law he would go back to Kansas City; he didn’t know why the police were looking for him; he looked in the trunk with his flashlight to see if there was more blood; he saw blood on the mat so he threw the mat away; he further testified: “And I thought well they are going to want an alibi and I don’t have no alibi, so I will just tell them I went hunting. So I discharged my shotgun couple times as evidence that I’d gone hunting.” He then drove to Hanover, called his lady friend, bought two pints of whiskey, returned to Marysville and then went to a Washington motel where he spent the night with his friend; the next day he drove around country roads with her looking for pheasants; he did not tell her about finding the body; after eating supper he returned to Marysville about 7:30 or 8:00 Sunday evening; he got two half pints o