32 Kan. 83 | Kan. | 1884
The opinion of the court was delivered by
This was a criminal prosecution for murder in the first degree. The defendant, Julius L. Bailey, was
These grounds for reversal we shall consider in their order.
I. The defendant claims that the court below erred in finding against him upon his plea in abatement, for the following reasons: He claims that no preliminary examination was ever had with respect to the offense charged against him; that he had never waived any such preliminary examination; that he had never been a fugitive from justice; and he makes this claim that no preliminary examination was ever had, for the sole reason that the warrant upon which he was arrested and the other papers upon which the supposed preliminary examination was had, did not state, or show any offense, nor charge any offense against him. Upon the hearing of the defendant’s plea in abatement, the following facts, among others, were shown: The defendant was arrested on May 21, 1883, by the sheriff of Reno county, on the .warrant of the coroner of such county, which warrant reads as follows:
“State of Kansas, Reno County.— The State of Kansas to J. M. Hedrick, Sheriff of Reno County: Whereas, on the 21st day of May, 1883, notice was given me, the undersigned, A. W. McKinney, a coroner in and for said county, that the dead body of a man had been found' at the N. W. ¶, sec. 9, town 24 S., range 5 west, in said county, supposed to have*86 died. by unlawful means; thereupon I issued a summons for six citizens of said county, and directed the same to J. M. Hedrick, sheriff of said county, returnable forthwith. Summons returned at 10 o’clock.
“The following jurors appeared: A. M. Switzer, J. Q. Robertson, J. C. Moore, J. Peter Klein, George I. Wainner, Edward Dennis, who were duly sworn. The jurors having inspected the body, heard the testimony, and made all needful inquiries, returned to me their inquisition in writing under their hands, as follows:
‘State op Kansas, Reno County. — An inquisition, holden at the residence of J P. Bailey, on section 9, town. 24, range 5, in said county, on the 21st day of May, 1883, before me, A. W. McKinney, coroner of said county, on the body of J. P. Bailey, there lying dead, by the jurors whose names are hereunto subscribed. The said jurors, upon their oaths, do say he came to his death by being hit upon the head with a piece of iron water-pipe in the hands of J. I. Bailey.
Given under our hands, this day of inquisition.
A. M. Switzer. J. C. Moore.
J. Q. Robertson. Geo. I. Wainner.
J. Peter Klein. Edward Dennis.’
“You are therefore required to arrest the said J. I. Bailey, aud bring him forthwith before George D. Barclay, at his office in Hutchinson, in said county, to answer said charge, and then and there return this writ.
“Witness my hand, in Reno county, this 21st day of May, 1883. A. W. McKinney,
Coroner Reno Comity.
Upon this warrant a preliminary examination was had before a justice of the peace, commencing on May 22, 1883. Prior to the preliminary examination, however, the defendant moved the justice of the peace to quash the warrant, and dismiss him from custody, for the reason that said warrant did not charge any offense. The justice overruled the motion, and then proceeded with the preliminary examination, and upon such preliminary examination found and ordered as follows:
“ The court finds that there are reasonable grounds for believing that the defendant, J. I. Bailey, committed the offense charged; it is therefore ordered by the court that the said defendant, J. I. Bailey, be committed to the jail of Reno county until the next regular term of the district court, to answer said charge.”
“State oe Kansas, Reno County. — Before Geo. D. Barclay, J. P. of Peno Township. — To the sheriff or any constable of Reno county: Whereas, one J. I. Bailey was, on the twenty-first day of May, 1883, arrested on a warrant issued by A. W. McKinney, coroner of Reno county, charging the said J. I. Bailey with the killing, feloniously, of one J. P. Bailey, in said Reno county, state of Kansas; and whereas, said J. I. Bailey, after a preliminary examination, held before the undersigned justice of the peace, it is found that said J. P. Bailey has been feloniously killed, and that said J. I. Bailey is probably the guilty party, you are therefore commanded forthwith to take the said J. I. Bailey, and commit him to the jail of Reno county, there to remain until the next term of district court, to be dealt with according to law.
“Witness my-hand, at my office in said township, this 24th day of May, 1883. Geo. D. Barclay, J. P.”
The evidence introduced on the preliminary examination was preserved, and is contained in the record of this case; and we think it is amply sufficient to authorize the justice of the peace to find that the offense of murder in the first degree had been committed by some person, by the killing of said J. P. Bailey by means of an iron water-pipe, as charged in the information, and that there was probable cause to believe -that the defendant was guilty of such offense; and therefore we think there was sufficient evidence introduced to authorize the justice of the peace to commit the defendant, as he did, to the county jail of Reno county, to abide the event of a final trial in the district court. Undoubtedly the foregoing proceedings were irregular. The facts were not'set forth in exhaustive detail, nor as fully as they should have been, nor with perfect accuracy; and yet we do not think that the proceedings were so irregular for these reasons as to be utterly void. We do not think that they wex’e so irregular that the defendant can say that he never had any px’eliminary examination with regard to the offense for which he was finally prosecuted. He did in fact have a px’eliminary examination, and thbfefox’e the claixn that he did not have any preliminary examixxation is not true. The
Now the main object of a preliminary examination is, in all probability, for the purpose of having the question determined judicially whether a person who is suspected of being guilty of the commission of a criminal offense shall be held for his appearance and trial in the district court. It is to prevent the escape of guilty persons, on the one hand, and to avoid the detention and imprisonment of innocent persons, on the Other; and this main object of a preliminary examination is satisfied whenever a party appears before the district court for trial and subjects himself to the orders and judgment of the district court. But a preliminary examination is probably also for the purpose of giving to the defendant a reasonable notice of - the nature and character of the offense charged against him; and the state should in all cases give the defendant such notice by a proffered preliminary examination, unless the defendant waives the same or is a fugitive from justice. (Grim. Code, § 69.) The question as to whether a preliminary examination has ever been had in any particular case, may be raised in various ways: (1) By a writ of habeas corpus, if the defendant has been imprisoned; (2) by an action for false imprisonment, if the defendant has been imprisoned; (3) by a defense to the bond, if the defendant has given a
When the question is raised by a plea in abatement, as in the present case, we think the only questions presented for consideration are, whether an attempt has been made to give the defendant a preliminary examination, and whether by such attempt reasonable notice has been given to him with regard to the nature and character of the offense charged against him. If no attempt has been made to give the defendant a preliminary examination, and if he has not waived the same, and was not at the time of the filing of the information a fugitive from justice, we think the plea in abatement should be sustained ; and also where the preliminary examination has not been waived and the defendant has not been a fugitive from justice, and has not had, through the instrumentality of a preliminary examination, any reasonable notice of the nature and character of the offense charged against him, we think the plea in abatement should also be sustained. But it is not necessary that the papers and proceedings on a preliminary examination should be technically regular and exact, like the papers and proceedings on the final trial. It is not necessary that the papers and proceedings on a preliminary examination should set forth the offense in all its details and with perfect and exhaustive accuracy. For the purpose of authorizing a final trial and of requiring that the defendant should plead to the merits of the action, all that is necessary is that the defendant should be given a fair opportunity to know by a proffered preliminary examination the., gen eral character and outlines of the offense charged against him; and it is not necessary that all the details and technical averments required in an information should be set forth in the papers used on the preliminary examination. And the defendant should take notice from the evidence introduced by the state on the pre
We think the defendant’s plea in abatement was rightfully overruled; but it must also be remembered that § 293 of the criminal code provides that—
“ On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”
II. The defendant claims that the court below erred in establishing a rule for the impaneling of the jury in this case that the state should exercise o ae of its peremptory challenges, and then the defendant should exercise two of his peremptory challenges, and then that the state should exercise one and the defendant two, and so on alternately, until all the peremptory challenges given by law to the parties should be exhausted. We think there was no error committed by the court in establishing this rule. But even if there was, the error was not material, nor could it have affected prejudicially the substantial rights of the defendant, for the defendant waived the 8th, 9th, 10th, 11th and 12th of his peremptory challenges, and voluntarily refrained from exercising the same. Under the statutes, in a case of murder, like the present, the defendant is entitled to twelve peremptory challenges, and the state is entitled to just half that number. (Crim. Code, §§198, 199.)
III. One of the counsel for the defendant, Mr. McKinstrey, claims that the court below erred in admitting the testimony of William E. Chambers relating to conversations had by him with the deceased in the absence of the defendant. This point does not seem to be relied upon by the other counsel for the defendant, Messrs. Scheble & Vancleveer. Now, portions of these conversations could not possibly have been prejudicial
IV. The defendant claims that the court below erred in refusing to give certain special instructions, numbered 2, 4, and 7, asked for by the defendant. Now all that was proper in these instructions was given by the court to the jury in its general charge, and it was not necessary for the court to repeat its instructions or to give the substance of the. same more than once. We think, however, that the court might properly have refused to giye No. 7 of said instructions without incorporating the same in its general charge, or in any of its other instructions; for, if given, it would have been misleading, and therefore erroneous.
V. We think there was misconduct on the part of the jury, and also on the part of the bailiff attending the jury. R. B. Shadduck was the bailiff who was sworn to take charge of the jury when they retired for deliberation at the close of the trial. L. W. Mills was another bailiff of the court; but he was not sworn to take charge of the jury, nor was it his duty to do so. Indeed, he could not rightfully take charge of the jury. The trial closed at the close of the day of September 10, 1883, and the jury immediately retired for deliberation, and remained in session during the entire night; and while they agreed upon their verdict at some time during the night, yet they did not render their verdict until the next morning when the court convened. At the close of the trial, Shadduck took charge of the jury and conducted them to'a room in the court house, adjoining the court room, which was assigned to the jury for consultation and deliberation. Shadduck at several times during the night entered the jury room, while the jury were in session. He also at one time left the jury for nearly half an hour in the charge of Mills; and Mills, while Shadduck was absent, also entered the jury room at one or more times. Mills also entered the jury room while Shadduck was present. At one time during the night three of the jurors were allowed to enter the court room to get a drink; and at another time during the night Mills conducted one or two of the jurors to the water
We would therefore think from the evidence that the jury must have been absolutely free from all outside influences -which might have aftected their verdict in the least. As before stated, the oral testimony of every juror and of Shad-duck and Mills and of others, was heard by the court below, and this testimony all tended to show that nothing could have occurred which might have prejudiced the rights of the defendant. There is nothing even in the evidence of the defendant which tends to show that any wrong influence was brought to bear upon any member of the jury. The defendant’s evidence merely tends to show that there were opportunities open for the presentation of such wrongful influence, provided there were any evil-disposed person lurking around the jury room or near there, desirous of doing so. Besides, the defendant’s principal evidence was merely in affidavits, and his principal evidence, whether embodied in affidavits or
VI. The defendant claims that the verdict of the jury is not sustained by sufficient evidence. Now as the evidence is wholly circumstantial, the defendant is afforded an opportunity to claim that it does not prove his guilt. We think it does, however; but from its great length, we cannot give it in this opinion. Indeed, it is so very voluminous, and involves such a vast number of details, that we shall not attempt to give any more than a mere outline of some of the principal facts which it tends to prove. The deceased was a man of considerable means. He owned a section of land situated about six or seven miles southeast of Hutchinson, in Reno county, Kansas; and he also owned a large amount of personal property, con
On the night of the homicide, the deceased slept on a bed in a little room in a corn crib near the defendant’s house; and the defendaut and his wife and children slept in one room of the defendant’s house, and Henry F. Hickock and wife slept in another room of the defendant’s house. The piece of iron water-pipe with which the homicide was committed, which was about two feet and seven and .one-half inches long, was
The coroner was notified, a coroner’s jury was summoned, and an inquest was had on that same day, with the result heretofore stated. The testimony of two physicians who •examined the deceased within two or three hours after his •death, and the testimony of another physician who examined the deceased within one or two days after his death, show that the deceased in all probability could not have lived over half an hour after the injuries from which he died were inflicted; and there was no evidence in conflict with this testimony of the physicians. Evidently, from the testimony of the physicians, they believed that the deceased would naturally have died from the effect of his wounds, within a much shorter period of time; and if in fact he lived for that period of time .it was strange. These wounds were inflicted upon the head
These are the principal facts of the case, but there are many circumstances which we have-not stated which tend to cast suspicion upon the defendant; and there is scarcely anything in the case that tends to cast suspicion upon any other person. The defendant’s conduct on the morning of the homicide, when the homicide was first discovered, and also at the time of the coroner’s inquest, was at least very' strange. His finding his father’s scattered clothing in the manner in which he did find it, and his stories with regard to the strange man at the depot at Hutchinson, and with reference to the two boys who “would just as lief kill a man as not,” wore certainly not very convincing as to his innocence; and really tended to cast suspicion upon him. Besides, the jury, on the trial of this case, as well as at the coroner’s inquest, heard the defendant testify, and observed his conduct and actions while testifying.
Now it could not have been Chambers who committed the homicide in this case, for the reason that no motive is shown which might have induced him to commit the homicide. The evidence, indeed, tended -to show that By the homicide he in
As before stated, the deceased was killed in his bed, while the bed-covering was still upon him; and there was no appearance of any struggle, or even that he was awake; and he was struck several blows on the head, any one of which would probably have knocked him senseless, and probably killed him. If the object had been merely to commit a robbery or larceny and escape, there would not have been any necessity for cell these blows, and probably not for any one of them. Besides, nothing was stolen or taken from the premises. Even the twentjr dollars in money, which Chambers knew the deceased possessed, and which he knew were in a pocket-book in a chest in the room where the deceased slept, remained undisturbed. All this evidence tends to show that the homicide was not committed by Chambers, or by any person who contemplated merely a robbery or larceny. It is true
Now while several irregularities occurred in this case, yet we do not think that anything took place to prevent the defendant from having a fair and impartial trial, and we do not think that anything occurred that could in fact have prejudiced any of his substantial rights.
We think the defendant is guilty of the offense charged against him; and, after having a fair trial, as we think he had, it is right that he should suffer the eonsecpiences.
The judgment of the court below will be affirmed.