## Facts

- A seven-year-old child was abducted in Topeka, Shawnee County, Kansas, on November 14, 1964, and later found dead in a rural area near St. Marys, Kansas.
- William Frederick Zimmer, age 40, was arrested the next day in Marysville, Kansas.
- At arrest, Zimmer was advised of his right to counsel and to consult with others, and he indicated he understood.
- Witnesses reported seeing Zimmer with a young Black girl in an orange car; a liquor-store clerk later saw Zimmer return alone with blood on his arm.
- The child’s body showed severe head and neck injuries; investigators found blood stains in Zimmer’s car and hair on a hatchet consistent with the victim’s hair.
- Zimmer gave conflicting accounts and ultimately claimed he discovered the body in his trunk and only disposed of it.
- Zimmer was charged with first-degree kidnapping with harm inflicted and first-degree murder under a felony-murder theory; a jury convicted him on both counts and imposed death for kidnapping and life imprisonment for murder.

## Issues

1. Whether venue for the felony-murder charge was proper in Shawnee County although the body was found in another county.
2. Whether the timing of counsel’s appointment after arrest violated the right to counsel and required reversal.
3. Whether the jury had to be instructed on second-degree murder as a lesser offense.
4. Whether the evidence was sufficient to prove first-degree kidnapping (including lack of consent) and felony murder.

## Decision

- The Kansas Supreme Court affirmed the convictions and sentences.
- Venue for felony murder was proper in Shawnee County because the kidnapping began there and the killing was treated as part of the same transaction for venue purposes.
- The delay in formal appointment of counsel did not warrant reversal where Zimmer was advised of his rights, had access to counsel, and no prejudicial critical-stage deprivation was shown.
- The trial court properly refused a second-degree murder instruction because the evidence supported either felony murder or no homicide by Zimmer, with no evidentiary basis for an intermediate homicide.
- The evidence, including eyewitness accounts, forensic proof, and Zimmer’s inconsistent statements, was sufficient to sustain both kidnapping with harm and felony-murder convictions.

## Legal Principles

- In felony-murder prosecutions, venue may be laid where the underlying felony commenced when the felony and homicide are treated as a continuous transaction under the venue statute.
- A child of tender years is legally incapable of consenting to being taken; circumstantial evidence of distress can support confinement against the child’s will for kidnapping.
- A lesser-included homicide instruction is not required when the evidence provides no rational basis for conviction of the lesser offense and supports only “guilty of the charged degree or not guilty.”
- Claimed right-to-counsel violations based on timing turn on whether a critical stage occurred without counsel and whether prejudice or tainted evidence resulted.

## Conclusion

The court upheld Zimmer’s kidnapping and felony-murder convictions, ruling that Shawnee County was a proper venue because the kidnapping began there, that the record showed no reversible deprivation of counsel, that no second-degree murder instruction was warranted on the evidence, and that the proof was sufficient to support the jury’s verdicts and sentences.


State v. Zimmer, 426 P.2d 267 (Kan. 1967)