35 Kan. 328 | Kan. | 1886
Lead Opinion
The opinion of the court was delivered by
On June 1, 1885, an information was filed in tbe district court of Osborne county, charging John R. Miller with the murder of Delbert J. Tunison, and also charging that John Cranshaw and Albert Whitaker aided and abetted Miller in the commission of the crime. At the trial, had the following September, a verdict was returned finding that John R. Miller was guilty of manslaughter in the fourth-degree. Upon his motion a new trial was granted, and immediately entered upon. This trial resulted in a conviction of murder in the second degree, from which he appeals to
The first point made is, that the evidence is not sufficient to sustain the verdict. The defendant acknowledged that on May 19, 1885, he shot and killed Delbert J. Tunison with a gun loaded with bird-shot, but he claims that the killing was justifiable, because the deceased was in the act of stealing certain horses, and also that there were reasonable grounds to believe that he was about to be killed by the deceased, or was in danger of great bodily harm. A statement of some of the leading facts together with what the testimony offered by the state tended to show, will be enough to make it appear that the verdict was not without support.
It appears that on Saturday, May 16,1885, a difficulty occurred between Tunison and his wife, the exact nature of which is not shown. Her father, Jeremiah Miller, who lived eight miles away, learned of the trouble on Sunday evening, went at once to the residence of Albert Whitaker, who was jointly charged with the defendant, and who was a near neighbor of the Tunisons, and remained there until Monday forenoon. Before noon of that day, and while Tunison was absent from home, Jeremiah Miller, accompanied by Albert Whitaker, went to Tunison’s house and hitched a pair of horses found there to a wagon and took Mrs. Tunison and the children to his home, carrying with them some goods and a cow found upon the premises, which property, together with the horses, was claimed by Mrs. Tunison as her individual property. The horses were also claimed by Tunison to be his property. The defendant is a son of Jeremiah Miller, and has made his home with him when not employed elsewhere, as also did his co-defendant, John Cranshaw, who is a son-in-law of Jeremiah Miller. At this time the defendant- was at work in Osborne City, which was distant eleven miles from his home, and Cranshaw was engaged in Glen Elder, still farther away. On Monday night the defendant and John Cranshaw hired a team at Osborne City, and drove home, where they
The testimony of the state tended to show that all of the parties anticipated that Tunison would come there during the night to retake the horses claimed by him. It was also testified that on the day previous the defendant visited his home and heard of the difficulty between Tunison and his wife, and. then threatened that he would kill Tunison within a week. There was also testimony that Cranshaw stated to parties in Osborne, from whom he hired the team on Monday night, that they wanted the team to go out home; that Tunison and his wife had separated, and she had gone home; and that Tunison was expected to go there that night, and if he did there would be trouble, and they were going out to take a hand in it. The parties all remained in the house until about ten o’clock at night, when a noise was heard at the barn, and defendant and Charles Miller went out there but found no one. They did not return to the house, but took a position in the barn where the horses stood, and where it was so dark that one object could not be distinguished from another. The defendant was armed with a shot-gun, which he says he accidentally found in the barn, and he and Charles Miller remained upon watch in the barn undisturbed until about midnight, when Tunison came into the barn, and without interference unloosed and took out a horse which proved not to be one of those claimed by him, but belonged to Cranshaw. He tied this horse to a post near by, and returned to the barn. While he was out, the defendant'changed his position in the barn, holding the gun in such manner that it could be readily used, and when Tunison was stepping into the barn the second time, the defendant shot him in the neck, when he fell backward and expired in a few hours afterward. This testimony, together with many circumstances which are not stated, tends strongly, to show that the killing was wholly without justification.
We do not overlook the fact that there was testimony contradictory to some extent of that which has been stated, nor
The eighth, ninth, tenth, and eleventh objections are without merit, and the twelfth is that the court would not permit the defendant to prove that the property taken by Mrs. Tunison and her father from her husband's premises was her separate and individual property. This objection is not tenable. It would have been improper to have entered upon the trial of the right to or ownership of the property in this proceeding. It did appear that the property was claimed in good faith by each of the parties as his or her individual property, and this was the extent to which it was proper to go.
The thirteenth and fourteenth objections are without force, and the fifteenth is a criticism of the instructions given to the jury. We have examined them, and find that the defendant has no cause for complaint except where the court, in speaking of the law of self-defense, states that “before a person can avail himself of the defense that he used a weapon in defense of his life, he must satisfy the jury that that defense was necessary,” etc. Separating this passage from the general charge, and considering it alone, it might appear to shift the burden of proof respecting one phase of the case upon the defendant, while it is well established that the presumption of innocence is with the defendant, and that the burden of proof rests on the' state throughout the trial. But the instructions are to be considered as an entirety, and in another portion of the instructions the court specifically charges the jury that “the burden of establishing the guilt of the defendant rests upon the state,'and in no stage of the case does the burden shift upon the defendant to prove his innocence,'or to prove that the killing of Tunison was justifiable.” The erroneous. use of the word “satisfy,” of which complaint is made, might possibly have resulted to the prejudice of the defendant if the court had not, in treating upon the same subject, clearly stated the burden to -be upon the state, and we therefore think that the jury could not have been misled.
We find nothing in the argument of counsel, nor in any of thé errors assigned, that wopld warrant a reversal of thé judgment, and it will be affirmed.
An examination of the record satisfies me that the district court committed some errors upon the trial, but I do not think that these errors affected the result in vio
Concurrence Opinion
I concur in the judgment of affirmance in this case. For while I think the court below committed a few errors, yet I have no doubt of the correctness of the final result reached. The errors evidently did not affect any of the defendant’s substantial rights.