95 Kan. 371 | Kan. | 1915
In this proceeding Jay Killion was charged with having, on August 25, 1913, killed and murdered Milton Hillier, a young farmer about twenty-seven years of age residing near Eminence in Finney county. Defendant’s plea in abatement and motion to quash were overruled, and he was tried and convicted of murder in the second degree. His motions in arrest of judgment and for a new trial were denied, and from the judgment and sentence rendered he appeals.
It appears that Killion and Hillier were neighbors. On August 25, 1913, Hillier and his wife prepared to go to Eminence to do some trading. Hillier hitched a team to the buggy while Mrs. Hillier dressed herself and their baby, and leaving the team standing near the house, Hillier took up the baby and said he would go on ahead and open a gate that led into the road to Eminence. Mrs. Hillier, it appears, stopped at the hen-house to feed the chickens. About two hundred and forty-three feet from the henhouse and ninety-three feet north of the gate opening into the road was another gate opening into a pasture then used by defendant, and when Mrs. Hillier was about half way between the henhouse and the Eminence road gate she noticed defendant and her husband standing, the latter with his child upon his shoulder, near the pasture gate. Her version of the unfortunate occurrence is that defendant dismounted from his horse, took from his hip pocket a pair of wire pliers, and advanced towards her husband in a menacing manner. She heard the defendant cursing her husband, and she called out requesting that they do not fight, and she also heard Hillier say to defendant, “If you want to fight, lay down those pinchers and fight like a man,” repeating substantially the same request three times, according to Mrs. Hillier. • After making this request Hillier placed the child upon the ground, and when he was raising up defendant'struck
On this appeal complaint is made of a number of rulings, including the overruling of a plea in abatement, the admission of certain evidence, the giving of
The first contention is that defendant did not have a proper preliminary examination on the charge of which he was convicted. In the original complaint it was alleged that the defendant did, at a certain time and place, “unlawfully, feloniously, and with malice aforethought strike and beat with a deadly weapon, to wit, a pair of pinchers, one Milton Hillier, and that his assault was so deadly that he, Hillier, died from the effect of same by 4 o’clock of said 25th day of August, 1913.” This charge was repeated in the warrant under which the defendant was arrested. Subsequently, and prior to the preliminary examination, an amended complaint was filed which fully and definitely set forth a charge of murder. Upon this complaint the preliminary examination was had. The sufficiency of the warrant, or the charge alleged in it, was not raised prior to the preliminary examination. If an offense was not sufficiently alleged in the warrant the defendant might have raised the question before the examination was had, but when he submitted to an examination without challenging the sufficiency of the warrant he was not entitled to have the prosecution abated merely because of the incompleteness of the charge in the warrant. The validity of the preliminary examination did not depend alone on the -averments in the warrant. As raised here the legality of the preliminary examination rests on the complaint, the warrant and the testimony produced at the preliminary examination. It is essential that the defendant shall have notice of the nature and character of the offense charged against him, but under the law he must take notice not only of the charges in the complaint and warrant but also of those developed in the evidence offered at the preliminary examination. (The State v. Bailey, 32 Kan. 83, 3 Pac. 769; The State v. Tennison, 39 Kan. 726, 18
There is complaint that on cross-examination the defendant was asked if he had not had fights at three times prior to this homicide. . The questions were asked and answered without objection from the defendant. Later, when the defendant was recalled, the prosecution inquired as to a particular fight which had been previously referred to, and to this an objection was made which was overruled. When the defendant became a witness in his own behalf he opened the way for the state to test his veracity on cross-examination. It has been held that for the purpose of impairing his credibility a defendant who takes the witness stand may be interrogated to the ■same extent as any other witness in regard to his past conduct and character, to any altercations or offenses, and to his having used dangerous weapons at other times. (The State v. Pfefferle, 36 Kan. 90, 12 Pac.
There is a complaint that witness Reeve was not permitted to testify that he had not heard the character of the defendant for peace and orderly conduct called in question. The exclusion appears to have been based on the fact that the witness was not well acquainted with the reputation of the defendant in the community where he resided. Subsequently, however, he was permitted to state that he had never heard of the defendant being charged with any offense or involved in any trouble or difficulty. The testimony of another witness, who had limited knowledge as to defendant’s reputation, was excluded, but much evidence of this character was received in behalf of the defendant where the witnesses were qualified to testify.
Some complaint is made that witnesses who had testified as to the general reputation of the defendant, and that it was good, were allowed to be cross-examined as to whether or not they had heard that defendant had committed or been accused of particular acts of misconduct and of being in fights at certain times. Where witnesses have testified to the good character of the defendant it is permissible to inquire of them whether they have not heard reports of particular instances which are inconsistent with the good reputation to which they have testified, and in that way seek to weaken or qualify the testimony which they have given. (The State v. McDonald, 57 Kan. 537, 46 Pac. 966; The State v. Yeater, ante, p. 247, 147 Pac. 1114; 12 Cyc. 416.)
It is urged that the court in instructing the jury trenched upon the province of the jury by assuming
“Malice, however, may be inferred from the fact of killing with a deadly weapon, and the use-of a deadly weapon, with which to do the killing should be considered by you together with all the other evidence in the case for the purpose of determining whether the act was malicious or not.”
It is insisted that the court assumed and decided that the pliers used by the defendant in the homicide, and which was a heavy metal tool, was a deadly weapon. It appears, however, that the court was not undertaking to characterize the tool, but was defining malice, and, speaking generally, said that if the killing of a person was done with a deadly weapon the jury might infer malice, and that such an inference, if it were drawn, taken in connection with other evidence, might be used in determining whether the act was malicious or not. This is shown more clearly by the following sentence of the instruction where the court said:
“A deadly weapon is an instrument which if used in a dangerous manner, is likely to cause death or great bodily harm.”
The defining of a deadly weapon indicates that the court was leaving to the jury the question whether the instrument used in the manner it was used constituted a deadly weapon. No error could have resulted if it had been assumed that the pliers, as used by the defendant, was a deadly weapon. As described it was as deadly as a hammer or other heavy metal tool. The instrument was before the jury, and when used in a dangerous manner, as it is admitted to have been used, there could be no question of its deadly character. However, the character of the instrument and the usé
It appears from the charge of the court that “malice,” “deadly weapon” and “reasonable doubt” were sufficiently defined, and also that the rule of self-defense was sufficiently and properly stated, and hence there was no error in refusing the defendant’s requests on those subjects.
It is argued that the giving of the second clause of the twentieth instruction was fatal error. The instruction covered all the degrees of the offense from murder to manslaughter in the fourth degree, sequentially stated. The first part of the instruction is as follows:
“If you-find from the evidence beyond a reasonable doubt that the defendant is guilty of murder in the first degree, as heretofore defined, committed in manner and form as charged in the information, on the person of Milton Hillier, and at the time and place therein named, then you should return a verdict of guilty of murder in the first degree. But on the other hand if his guilt is not so established to -your satisfaction beyond a reasonable doubt, then you may proceed to inquire whether he is guilty of murder in the second degree, as heretofore defined, committed in manner and form charged in the information upon the person of Milton Hillier, and at the time and place therein named, then you should return a verdict of guilty of murder in the second degree. But if you are not so satisfied beyond a reasonable doubt, then you may proceed to find whether he is guilty of manslaughter in the first degree.”
There is a manifest defect in that part of the instruction which relates to the charge of murder in the second degree, and if the charge did not otherwise define the offense and state the ingredients essential to be established the instruction might be regarded as misleading. It is said that a clause was inadvertently dropped out by a stenographer in copying the instruc
“But on the other hand if his guilt is not so established to your satisfaction beyond a reasonable doubt, then you may proceed to inquire whether he is guilty of murder in the second degree, and if you find from the evidence beyond a reasonable doubt that the defendant is guilty of murder in the second degree, as heretofore defined, committed in manner and form charged in the information upon the person of Milton Hillier, and at the time and place therein named, then you should return a verdict of guilty of murder in the second degree.”
The italicized clause was omitted. Other instructions stated, in effect, that the defendant could not be found guilty of any degree of the offense unless it was proven by the evidence beyond a reasonable doubt. In the seventh instruction the court advised the jury of the elements which enter into murder in the second degree, and after enumerating the essential ingredients the court said:
“If any one of those essentials, viz: malice, intent, willfulness, design, mode of killing or place of killing, is not proven to your, satisfaction beyond a reasonable doubt, you should acquit the defendant of the charge of murder in the second degree.”
In the third instruction, after stating the degrees of the offense alleged in the information, including murder in the second degree,- the jury were told:
“If you believe from the evidence beyond a reasonable doubt, that the defendant is guilty of some degree of the offense charged, and there be in your minds a reasonable doubt as to which of the several degrees of the offense charged he is guilty, your verdict must be for the lowest of said degrees.”
Over and over again the jury were reminded, in effect, that it was incumbent on the state to prove every ingredient of the offense charged, including the lesser degrees of it, by competent evidence, that guilt must be
“If you are not so satisfied beyond a reasonable doubt, then you may proceed to find whether he is guilty of manslaughter in the first degree.”
It has been held that the charge of the jury is to be read in its entirety and that an inapt word or an inaccurate expression will not be regarded as ground for reversal where it appears from the whole charge that the jury could not have been misled by the inaecúracy.
(The State v. Atterberry, 59 Kan. 237, 52 Pac. 451.)
It is said that the instruction as to reasonable doubt was abbreviated and incomplete. It read:
“The term ‘Reasonable Doubt’ best defines itself. In a legal sense, however, a reasonable doubt is a doubt which has some reason for its basis. It does not mean a doubt from mere caprice or groundless conjecture. A reasonable doubt is such a doubt for which the jury is able to give a reason.”
The court was right in stating that the term best defines itself. It is very doubtful whether the term can
“The idea intended to be expressed by these words can scarcely be expressed so truiy or so clearly by any other words in the English language. And generally the attempted definitions of them by courts or others ■are simply misleading and confusing, and not proper explanations of their meaning at all.” (p. 11.)
Brevity, of itself, can hardly be regarded as a defect, and definitions substantially similar to the one given have been approved. (The State v. Patton, 66 Kan. 486, 71 Pac. 840; The State v. Wolfley, 75 Kan. 406, 89 Pac. 1046.)
The instruction relating to the testimony offered of the reputation and good character of the defendant is not open to the criticisms which have been made, and we find no error in the one referring to the fact that the defendant testified in his own behalf. In it the court told the jury that the defendant was a competent witness an d the fact that he was charged with a crime did not affect his credibility as a witness, and that his evidence should be considered with all the other evidence and circumstances of the case. Then there was added the clause to which objection is particularly made — that the jury might take into consideration his interest in the case. The instruction, on the whole, was intended to benefit the defendant, and the last clause was only stating a common rule that the jury have a right, in weighing evidence, to consider the interest of any witness in the case.
An examination of all the criticisms of the instructions has been made, and we find nothing in them that would justify reversal.
It is urged that there was misconduct of counsel for the state and that applause by the audience of improper remarks by counsel was permitted by the court to the prejudice of the defendant. In his address to the jury assistant counsel for the state said, in sub
The judgment is affirmed.'