Conclusion of series on 1954 murder
Editor’s note: This is the conclusion of a three part series about a Butler County 1954 murder case.
The trial of Robert R. Stewart, former Wichita policeman charged with first degree murder of his girlfriend, Nan Warner on June 26, 1954, was in its third day at Butler County District Court when prosecutor Morris Moon introduced a surprise witness whose testimony was expected to be important to the outcome of the trial.
Arresting officers State Trooper John Fee and Augusta policeman Bruce Wiseman both testified earlier at length concerning early incidents that led to Stewart’s first confession in the case. Dr. A.A. Fink, widely-known pathologist of Topeka who performed the autopsy on the slain woman testified for almost an hour as to the nature of the wound and cause of death. He stated that she had died from hemorrhage caused by a severed jugular vein.
The surprise witness was Betty Julius, 24, of Wichita, who testified that on the night of the alleged murder, she sat with her husband in a car next to Stewart’s Mercury at the Riverside Rainbow drive-in cafe across the street from the drive-in theater in Wichita where the couple was supposed to have seen a movie prior to the shooting. The witness told the court that she overheard the couple in an argument and overheard the woman - Miss Warner - ask Stewart, “Why do you want to murder me?”
The defense counsel vigorously protested, but the testimony of Mrs. Julius was admitted to record.
Stewart denied ever having been in such an eating place and further stated that the only food eaten were two hot dogs purchased at the theater.
The defendant testified that along the road north of Santa Fe Lake, he slammed on the brakes, which threw both of them forward, and stopped the car partially “crossways” on the road, as shown in the evidence in a photo presented as evidence. He backed the car slightly, started forward, and then Nan said, “Damn you, Bob.” She grabbed Stewart’s gun from between the seats. He grabbed for it and they wrestled for the gun. Stewart next heard an explosion of the gun going off and then saw it lying on the seat covered with blood. Nan was on her side of the car with her head back and was bleeding quite profusely from a large wound. He tried to stop the flow of blood, felt a weak pulse, and started for the hospital in El Dorado. When he found no pulse he made a U-turn and headed back west. He continued driving dirt roads.
County Attorney Morris Moon presented the case against Stewart with dramatic courtroom reconstruction of the murder scene. Moon told the jury it would have been impossible for Nan Warner to have been shot in the right side in the position in the car as related by the accused. Moon maintained she was shot elsewhere or in a different manner than that stated by Stewart.
The defense counsel, Dick Moss and W.H. Coutts, Jr., leaned heavily on the contention that Stewart was in a drunken condition at the time and could not remember events surrounding the actual shooting.
The jury was handed the case early in the afternoon of Dec. 17 by Judge W.N. Calkins with instructions to return a verdict of murder in the first degree or second degree or manslaughter in the degrees from one to four and affix the penalty in any case. The jury of 10 men and two women were excused for the evening meal and returned to the jury room for further deliberation, obviously in disagreement over the verdict.
The jury decided the fate of Robert Stewart and reached an agreement about 10:30 p.m. After a waiver by both parties of the jury call, a verdict of guilty in the second degree was returned, which was read into the record verbatim by the clerk at the court’s direction. The jurors were asked if that was the verdict of each and every one of them and they answered as one, “It is.” The sentence carried a penalty of not less than 10 years in the state penitentiary.
Motion for new trial
Two days later Stewart’s attorneys filed a motion for a new trial. The motion claimed the jury had received evidence, papers, and documents not authorized by the court, which resulted in admission of illegal testimony and discovery.
The $10,000 bond was set at a conference between the defense lawyers, County Attorney Moon and Judge Calkins.
Posting bond meant that Stewart would be allowed to walk from the Butler County jail for the first time since his arrest June 27th. Stewart would remain free under the bond until at least Dec. 29th, the day set by Judge Calkins for hearing the motion. Should the judge deny the motion and the defense appeal to the state supreme court, Stewart would remain free until that court ruled on the case.
Stewart appeared in District court with his father and grandfather for the hearing of a motion for a new trial.
In contrast to the number of spectators who had crowded into the courtroom during the trial, only Judge Calkins, court reporter Raymond Krutsinger, County Attorney Moon, Defense Attorneys Moss and Coutts, and the Stewarts were present at the hearing.
Stewart’s attorneys asked for a continuance and the request was granted. The hearing would be on Jan. 6th.
On that date District Judge Calkins overruled the motion for a new trial shortly after noon and defense attorney Dick Moss and W.H. Coutts, Jr., immediately filed a motion in arrested judgment. Judge Calkins set the hearing for that motion at 1 p.m. and overruled it when court reconvened.
The judge sentenced Stewart to 25 years in the state penitentiary and the balding 24-year-old former policeman immediately announced his intention to file an appeal with the Kansas State Supreme Court. The appeal would need to be filed within 10 days.
After receiving the appeal, the supreme court would set a new bond, under which Stewart, if he met it, could remain free until the appeal was heard. There was no definite limit as to how long the court could wait before hearing the appeal. Until the new bond was set, Stewart remained free under the $10,000 bond set by Judge Calkins after his conviction.
Present at the hearing was Leroy Warner of Wichita, father of Miss Warner. He had filed a damage suit in Harvey County district court against Stewart, seeking compensation for the loss of his daughter.
State Supreme Court stays sentence
Ten days later the Kansas Supreme Court stayed the 25-year prison sentence of Robert R. Stewart pending its decision on his appeal from a second degree murder conviction.
In issuing the stay order, the Supreme Court set bond at $20,000, which is $10,000 more than set by Judge Calkins when Stewart’s attorneys filed a motion for a new trial immediately after his conviction.
Stewart did post the additional $10,000 with Harry Martin, clerk of the district court and Martin forwarded it to Topeka.
Names of persons signing the bond were not released to the press, but it was reported that the signers included the same three individuals who provided the original $10,000 bond.
Dick Moss, one of Stewart’s attorneys who defended him in the five-day trial, withdrew, as defense council upon taking office Jan. 10th as Assistant Butler County Attorney.
Supreme Court ruling
The over-all nature of Stewart’s appeal to the state’s highest court was that he did not receive a fair trial.
One of the objections lodged was against the admission of photographs allowed by the court. A screen displaying enlargement of slides and colored photos was used, to which the defendant vehemently objected. The Supreme Court decision indicated that the trial court was “very zealous in protecting the rights of appellant. Photography is recognized more and more by courts as being helpful in presenting facts.”
Stewart, the appellant, also objected to the cross-examination of the “surprise witness” Betty Julius, who testified she saw Stewart and Warner in the drive-in cafe.
The Supreme Court ruled that there was no prejudice shown in use of evidence and that the court did not abuse its discretion in admitting or excluding any evidence.
Counsel for Stewart also complained that he was unduly limited in his number of character witnesses. Here again the Supreme Court found that the trial court had wide discretion and its ruling would not be “disturbed.”
The high court also found no merit in the appellant’s contention that the verdict was contrary to the evidence.
The Kansas Supreme Court upheld the conviction of Robert Stewart on May 5, 1956.
Stewart would start serving his 25-year sentence handed him by the district court. He entered the Kansas state prison at Lansing on May 31, 1956.
Records at Lansing and at the Kansas Historical Society Archives show that Kansas Governor George Docking commuted Stewart’s sentence on June 29, 1957.
Afterword: Efforts in finding any information on Governor George Docking’s reasons for commutation of Stewart’s sentence were futile, as were attempts in picking up Stewart’s trail after release from prison.
Census records for 1986 do show that Stewart was living in Newton and Social Security records indicate that Robert R. Stewart, 57, died on Nov. 14, 1987 and was buried in the Hesston Cemetery.
For this writer, however, many questions remain unanswered in the intriguing Butler County murder case.
Sources: Augusta Daily Gazette December, 1954, January, 1955, December 1955, and May, 1956; The El Dorado Times December 1954 and December 1955; Lansing Correctional Facility Archives; Kansas Historical Society Archives; findagrave.com.