59 Kan. 576 | Kan. | 1898
This is an appeal from a judgment of conviction of murder in the second degree. Summarized, the bill of exceptions shows that the defendant is a native of Germany, who came to this country three years and a few months preceding the homicide
. April 25, 1897, one Joseph Lindsay rented a portion of Judge Gray’s farm lying between the Missouri Liver and the Missouri Pacific Lailroad, which runs northwest from Kansas City. Of this tenancy, however, the defendant was ignorant. On the afternoon of April 27, Joseph Lindsay’s two sons, Lussel and Milton, and a young man named Esley Maulding, went to work on the rented ground. They took with them a wagon and team, hoes, and a dog. About two ■o’clock, while the Gray family, including the defendant, were dining, a shot was heard by them in some woods in the direction of the place where the young men were working. The defendant was directed to ascertain concerning it and to arrest the hunter. He put' on a revolver and belt and went down where the young men were. He approached them and accused them of shooting on the premises, and demanded to know where their gun was. Lussel Lindsay at first said that if they had a gun it was in the wagon. Subsequently, during the altercation which followed, he denied having a gun. The defendant looked into the wagon and saw no fire-arm, but accused Lussel Lindsay of having one, and told him he arrested him for shooting or trespassing ; and,
A freight train on the Missouri Pacific Railroad was passing at this time. Lindsay in his flight got upon the track immediately in the rear of the caboose after it passed. The first shot attracted the attention of a couple of trainmen who were sitting in the caboose.
Before dying, Russel Lindsay-made a statement, which was taken down in writing, and which was read in evidence as a dying declaration. It is as follows :
“About 2 p. m. on April 29, 1897, I was down near the Missouri Pacific tracks, east side of the fence on a piece of ground that father was putting in potatoes. When a Dutchman who works for Gray was running towards Gray’s house and when he came back he had a revolver in his scabbard or belt and belt strapped around him. When he came to.me and my brother*580 and Esley Maulding lie asked me where my gun was. I told him if I had one it was in the wagon, meaning a wagon we had there at that time. We were joking, as I thought. There was a shot in the woods before this transaction. The woods were about a hundred yards east of us and this shot in the woods made the Dutchman mad. I never knew or was acquainted with-the Dutchman before to-day. I never talked to him in my life. When he came to me he held his revolver within three inches of my nose and said to me ‘ Give me your gun,’ and I told him he would have to find it and take your gun out of my face. And he said ‘ I will shoot you, will blow your head off.’ I stood and talked to him and he said to aman — he called to him : ‘ I deputize you to help arrest this boy.’ This man said nothing and the man came over to me and said nothing. And the Dutchman said, ‘Grab hold of this man and help take him along.’ The man asked, ‘ What is the matter ? ’ I did n’t answer, neither did the Dutchman. Then the Dutchman grabbed my dog and commenced to abuse him. I said, ‘Let that dog alone.’ Then the Dutchman commenced to abuse me and pulled his pistol and struck at my face and said he would ‘ knock my head off.’ I told him not to shake his pistol in my face and handle it so recklessly that he might hurt some ■one, and he said he would shoot my head off and again abused me and then shook his revolver in my face and I took it away from him. And the man with him said he would behave if I would give him back his gun. I did so, and he commenced to strike at me with his gun. I turned around and started away from him out to the Missouri Pacific tracks and turned down the track and he fired one shot in the air, and fired again and shot me in the back. He then came down to where I was lying and kicked me with his foot and said, ‘ Get up, you aren’t shot.’ I •couldn’t get up. He took hold of me and said, ‘Let’s ■see where you are shot.’ I said, ‘I am shot.’ He then left me and I have not seen him since. I make this statement in the fear of approaching death.”
After the shooting, the defendant returned to Judge
The court refused to instruct that if the defendant had reasonable grounds to believe, from the acts and language of the deceased in his presence and hearing, that the deceased had committed a criminal trespass and intended to continue its commission, such acts, upon the part of the deceased were equivalent to the-commission of the trespass itself in the presence of' the defendant as an officer, and justified the arrest of' the deceased as for a misdemeanor committed in the-presence of the officer, and that, in making the arrest, the defendant as such officer was justified in killing, the deceased if necessary to overcome his resistance. On the other hand the court instructed the jury that, the defendant as an officer, had a right to arrest the-deceased if he had “reasonable cause to believe him guilty” of a criminal trespass, but that he could not lawfully kill him for the purpose of making such arrest or of retaining the prisoner’s custody after the arrest; and that if the deceased induced the defendant to believe that he had been trespassing and in
“Unless it be in cases of riots, it is not lawful for an officer to kill a party accused óf a misdemeanor if he fly from the' arrest, though he cannot otherwise be overtaken. Under such circumstances (the deceased only being charged with a misdemeanor) killing him intentionally is murder ; but the offense will amount only to manslaughter if it appear that death was not intended." Wharton’s Criminal Law (10th ed.), vol. 1, § 404)
Claims of error, other than the one above discussed, are the refusal of other requests for instructions, and the giving of certain other instructions ; the rejection of certain evidence ; the refusal of the court to require the State to call certain witnesses whose names were indorsed upon the information and who were eye witnesses to the homicide, thereby compelling the defendant to call them himself. Still another one upon which the appellant lays much stress was the use by the county attorney and his assistants, in their addresses to the jury, of certain language denunciatory of defendant and some of his witnesses, to which objection was made at the time but which the court failed to rebuke or guard against by proper admonition to the jury. We have given to all of these claims of error careful attention. None of them are well founded. In The State v. Baker (57 Kan. 541, 46 Pac. 947), a new trial was ordered on apcount of the allowance by the court of abusive and improper language by the county attorney calculated to create prejudice against the defendant, but the language of the addresses in this case and the circumstances which seemed to inspire them are quite different from those in the cited case.
The record which comes here shows the second conviction of the defendant for the killing of Kussel Lindsay. The circumstances of such killing, as detailed in the bill of exceptions before us and which we have epitomized, are a sufficient commentary upon all the claims of justification and lack of intention put forth by the defendant. Two juries have found the facts against him. The law upon that state of facts was correctly declared by the court below, and its judgment of conviction must be affirmed.