95 Kan. 247 | Kan. | 1915
The opinion of the court was delivered by
H. A. Yeater was convicted of manslaughter in the third degree for the killing of Archie Capps, and appeals.
On August 9, 1913, Yeater, a robust man about thirty-one years o'f age, and Harry Capps, who was about sixteen years of age, were both employed by the Missouri.Pacific Railway Company at.Council Grove, Yeater at the roundhouse as an engine-crew caller and Harry Capps at the passenger depot as a train-crew caller. It appears that at about eleven o’clock of that night Harry Capps called Yeater on the telephone to inquire about a certain engine crew, and Yeater answered. him in a rather rough and profane manner. Capps reported Yeater’s action to Mr. Bowers, the night foreman at the roundhouse, who was a brother-in-law of Yeater, and shortly afterward Yeater went to the depot and demanded, as it is claimed, that Harry Capps go to the foreman and repudiate the complaint he had made. Capps refused to do so, and as he started to leave the depot Yeater followed and seized and pushed him about, and while they were quarreling over the matter Archie Capps, Harry’s brother, who was about twenty years of age, came up and inquired of Harry the reason for the quarrel. Being told by him that Yeater wanted him to “go over and lie to Bowers,” Archie entered into the discussion, and as Harry started to the well to get a drink Archie was heard to say, “Come on and whip him,” or some such expression.
The first assignment of error is the exclusion of testimony offered to show that the defendant had never attacked the witness or had trouble with him. A number of witnesses had testified in favor of defendant to-the effect that he had the reputation of being a peaceable, quiet and law-abiding citizen, and one of them was asked on cross-examination if he had not heard of a quarrel between defendant and Adkins as well as with some others named, and he replied that he had not. Later Adkins was called by the defendant as a witness, and was asked if defendant had ever chased him around the engine house with a knife in his hand. An objection to the question was sustained. The defendant says the inquiry as to quarrels with Adkins and others had suggested to the jury that there had been such quarrels, and that he desired and was entitled to show that no such quarrels had occurred. No error was committed in sustaining the objections and' in refusing to enter upon a trial of these collateral issues. The subject of inquiry was the general reputation of the defendant in the community for peace and quietness. Witnesses stated that it was good, and their statements were then tested on cross-examination by asking them if they had not heard people speak of certain actions of the defendant that were disorderly and
“Statements made by attorneys in the course of the trial or the assumption of any fact in any question asked of a witness and which is not supported by any evidence should not be considered by you.”
“It looked to me as though they [the Capps boys] were trying to get hold of him [the defendant] to get him down.”
This was a mere conclusion of the witness. The acts of the Cappses might have been described and stated instead of the inferences and conclusions of the witness as to what they were trying to do. It belonged to the jury to draw the inferences from the testimony as to the purpose of those engaged in the fight. However, the ruling, if it had been erroneous, was of no materiality, as the witness was subsequently allowed to testify what the Cappses did and álso what they appeared to be trying to do during the fight.
There is a contention that the evidence in the case did not warrant the court in instructing the jury as to the offenses of murder in the second degree and manslaughter in the first and second degrees, and'it is further contended that under the evidence the defendant was not guilty of any offense and that the stabbing and killing of Archie Capps was done by the defendant in self-defense and was justifiable. In view of the testimony in the case it would be very difficult to demonstrate that the court was not warranted in submitting instructions as to the higher degrees, but, however that may be, the defendant was convicted of manslaughter in the third degree, and having been acquitted of the higher degrees charged he suffered no prejudice from the instructions complained of and has no good reason to complain.
The contention of the defendant that there is a lack of evidence to sustain the finding of the jury can not be sustained. It is insisted in his behalf that the Cappses were the aggressors, that they not only attacked but pursued him until he was compelled to use the knife .upon them, and that at the time it was used he was in
“It is not enough to justify or excuse the homicide that in the course of the difficulty it became necessary for defendant to kill the deceased in order to save his own life or prevent great bodily harm; but he must also have been free from fault in provoking or continuing the difficulty which resulted in the killing. In such case defendant is guilty of murder or manslaughter.” (21 Cyc. 805.)
Even if the Capps should be regarded as the aggressors in the difficulty it would not necessarily justify the defendant in taking the life of either assailant. The jury may have inferred from the evidence that defendant had no reasonable ground for the belief that there was a necessity for him to kill Archie in order to save himself from death or great bodily harm and that he did not in fact have such belief. In The State v. Rogers, 18 Kan. 78, 26 Am. Rep. 754, it was held, in effect, that a blow with the hand unaccompanied by anything to indicate a desire to kill or do great bodily harm does not justify the one assailed in the killing of an assailant although the former may have retreated and the latter did not indicate an abandonment of the conflict. In deciding the case it was further said:
“The authorities uniformly hold that the person who first commences a malicious assault, then continues to advance as the assailed retreats, or does not in good faith attempt, so far as he can, to withdraw from the combat, and abandon the conflict, can not justify taking the life of his adversary, however necessary it may be to save his own, and must be deemed to have brought upon himself the necessity of killing his fellow-man.” (p. 85.)
Nothing in the record indicated that the defendant at any time retreated from the conflict or uttered any expression of a desire for peace. He appears to have had the advantage of his opponents throughout the fight, and the testimony is that he had the deceased
The judgment of the district court is affirmed.