41 Kan. 309 | Kan. | 1889
Opinion by
On Sunday morning, September 20, 1885, John W. Jones, the defendant, killed Edward H. White, in Shawnee county. The defendant was tried in November following, in the district court of said county, found guilty by a jury of murder in the first degree, and upon March 31, 1886, the court entered judgment accordingly. Defendant appeals.
The record discloses substantially these facts: Jones was a tenant of White, and there had been some difficulty between them concerning the terms of a lease under which he held, and more especially about the trespassing of White’s stock in Jones’s garden-patch and cornfield. There had been considerable bad blood, some threats made by both parties, and several altercations between them. Early in the morning in question White missed a heifer from his herd, and went to Jones’s house, which was about fifty or sixty rods south of his house, where he found her. Of what occurred after White first met Jones that morning, we have the testimony of the defendant and of Edward White, a ten-year-old son of the deceased. Jones says he was near his stable feeding his horses, and as White passed by after his heifer, he abused him; claimed he was responsible for the heifer getting into the cornfield by not keeping his fences properly repaired, and threatened him; that he said little, if anything, in reply. On the other hand, White’s boy states that Jones first called to his father, but that they were so far away from him that he could not understand what was said between them. Both agree that White passed on, found his heifer, and was driving her back to his house. The lad says that the heifer ran out of the road and his father followed her; while Jones states that after driving the heifer past his place he must have turned around and come back to the stable. The testimony in the district court
At the trial Joel Huntoon, a civil engineer, testified that the defendant upon the day of the homicide fired a musket
The defendant then offered George B. Palmer and A. J. McLaughlin for the purpose of showing from the nature and size of the wound the approximate distance that Jones must have been from White at the time of the shooting. They were not allowed to testify on that point. The defendant claims that the rejection of this testimony was error. He claims that this is expert testimony; the state denies. McLaughlin testified that he was a manufacturer and trader in breech and muzzle-loading guns; that he was a gunsmith by trade, and had been in the business for thirty years; that he had experimented with guns and muskets such as the one used by defendant; that it had been a study with him and with men in his business to find how guns could be manufactured to throw shot compactly for a distance, and that they tried to manufacture improved guns which would increase the distance they would thus carry a load of shot; that by experiment and study he had obtained a definite and accurate knowledge of how far shot-guns of all kinds would carry without scattering. He further stated that he had sufficient experience to tell from the character of the wound about the distance the gun discharged would be from the person shot; that he had experimented himself and seen others experiment with shot-guns and muskets when loaded with powder and “double B” shot, to see how far they would carry without scattering. He was then asked:
“Q,. From such experiment and observation are you able to tell with any degree of accuracy how far such a gun would throw shot without scattering beyond what would be a distance two inches in diameter, with four or five shots just around the edge of the space in diameter ? A. I can state the distance within which such a shot would necessarily be made.
“Q,. State what the distance would be.” [Objected to on*313 the ground that said question is one of fact for the jury, and not such an one as requires the opinion of an expert; the court sustained the objection, defendant duly excepting.]
Other questions of like character were asked, and the question was fairly presented to the court.
We believe that the evidence sought to be introduced by these questions was competent, and that its rejection was error. It was material testimony in this case; the testimony of Jones, the defendant, and this lad, were upon two theories of the case and were distinctly inconsistent. One had testified that the parties were only seven feet apart at the time of the shooting, while the other had located them from sixty to one hundred feet from each other. It became a matter of vital importance to determine which account of the homicide was truthful — that of the boy, or of the defendant.
One of the important facts to be found by the jury was the distance the defendant and deceased were from each other when the fatal shot was fired. The determination of that disputed question would have in this case very great importance in determining whether the testimony of the boy White or of the defendant should have been given greater credence. If the boy’s testimony was true, then the defendant was guilty of murder in the first degree beyond a reasonable doubt; and on the other hand, it is equally plain if the defendant told the truth he certainly was not guilty of that degree of homicide.
If there is any rule known by those who have made the use of firearms a special study, showing at what distance shot could be thrown compactly and at what distance they would scatter, it should have been given to the jury, either as a corroboration «or refutation of either the defendant or of the lad White.
The theory of the state is, that this testimony was not expert testimony; that the jury was as competent to determine the distance the parties were apart when deceased was shot as the gunsmith, and cite a long list of authorities to support its contention. We have examined all that have been cited, and believe that no one of them is applicable to this case; they
We recommend that the case be reversed, and remanded.
By the Court: It is so ordered.