73 P. 905 | Kan. | 1903
The opinion of the court was delivered by
On the afternoon of April 18, 1901, a team of horses drawing a farm wagon and galloping along a country road in Cowley county, a short distance west of Winfield, without a driver, was stopped, and the wagon was found to contain the dead body of
On the evening of the day preceding this, shocking catastrophe, two boys, Charles Betts, aged thirteen and still wearing knee trousers, and Clyde Moore, who was not yet seventeen years old, left their homes in Arkansas City for Winfield. By pawning a bicycle they had obtained some money which, when divided, amounted to about $2.15 for each one, and Charles Betts took with him a large 44-caliber Colt’s revolver belonging to his father. Being unable to conceal so formidable a weapon upon his childish person, it was given to Clyde. They arrived at Winfield at night. The next morning they left the lodging-house where they had slept and during the forenoon strolled about the city, loitered along the tracks and upon the grounds of various railroads entering it, conversed with a tramp
Late in the afternoon Clyde climbed into a box car of a ’Frisco railroad-train at Winfield, and went home. Near five o’clock in the evening Charles appeared at the station of Hackney, on the Santa Fe railroad, between Arkansas City and Winfield, and tried to purchase a ticket to St. Joseph, Mo. Later he took a train at Hackney for Arkansas City, arriving there after night, when, without going home, he went to Clyde’s house and inquired for him. When seen at Hackney and on the train his shoes and clothing were muddy, as they were when he finally reached his home. Once home, a state of nervous excitement relaxed in an uncontrollable precipitation of tears.
In the immediate vicinity of the scene of the murder two lines of footprints of different size were discovered. They led away from the fateful place in different directions and portions of their courses appeared to have been made by running feet. These telltale tracks were traced through many meanderings. Sometimes after wide detours the two trails seemed constrained toward each other, as if the fleeing persons, who made them had expected to meet; and in one instance one line of tracks led an apparently anxious search far down one side of the Walnut river, and 'then returned, while the other lay unresponsive across the stream. Finally, the larger tracks passed into Ninth avenue near the place where the deceased man
Clyde Moore was charged with the crime, tried upon an information for murder in the first degree, convicted of murder in the second degree, and sentenced to confinement at hard labor in the penitentiary for twenty years.
In this appeal he claims the trial court committed grievous error in admitting over his objection evidence relating to the tracks made, course pursued, conduct exhibited, and appearance presented by Charles Betts subsequently to the commission of the ■crime. At the scene of the murder human footprints were as relevant as pools of blood, and it was as proper to show the size, direction and characteristics of those which were found, and all the facts and incidents attending them, as it would have been to de
Counsel for appellant refers to the familiar law limiting evidence of what is said and'done by one conspirator, offered upon the trial of another, to acts and declarations made and done while the conspiracy was pending and-in furtherance of the common design. But Moore was not prosecuted' upon the theory that a conspiracy made him liable for the acts and declara
Since the evidence complained of was properly admitted, the criticism of counsel for appellant upon an instruction to the jury concerning it is not well founded and does not require extended discussion.
The appellant further feels aggrieved that the trial court refused to permit a question asked a witness by his counsel to be answered. At a preliminary examination held to investigate if probable cause existed to hold Charles Betts for the crime, Clyde Moore was a witness. In his testimony at that hearing Clyde Moore gave a detailed statement as to where he and Charles went and what they did while together, and as to where he went and what he did after they separated. Upon Clyde Moore’s trial, a witness who had heard this statement was produced and asked to repeat Clyde’s story up to the point where he had stated he and Charles had separated. Upon cross-examination, the witness was asked to proceed with the narrative, which he did to the fullest extent the examining „ counsel required. After having apparently exhausted the witness as to everything Clyde had said he had done, counsel propounded this question: “You remember also that he testified that he had nothing, and knew nothing, about the killing of your father, do you not?” The court refused to permit the question to be answered. Clearly the ruling was not prejudicial. The facts narrated made it impossible
“ 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.” (Gen. Stat. 1901, §5731.)
At the trial the district court instructed the jury upon the law of murder in the second degree. The appellant now claims that the facts and circumstances disclosed by the evidence irresistibly compel the conclusion that the crime was murder in the first degree as charged in the information ; that the verdict shows the jury to have been unwilling to convict of murder in the first degree ; and hence that appellant was entitled to an acquittal, which was prevented by the unwarranted instruction. The evidence in the case was wholly circumstantial. No one saw the deed who could be used as a witness by the state, and in finding a verdict the jury were confined to an interpretation of the dumb memorials outraged natui'e herself preserved. This court is not prepared to say that a state of facts could not exist under the evidence involving purpose and malice but excluding deliberation and premeditation. There may have been a quarrel and the
Appellant finally claims that during the progress of his trial certain sensational newspaper articles concerning matters supposed to affect the case were circulated in the county, producing much public excitement, and he claims that something of this agitated state of feeling was communicated to the jury, to his prejudice. The record, however, is barren of any proof of any such influence upon the minds of the jurors. The affidavit used upon the hearing of the motion for a new trial does nothing more than state a belief that the public passion found its way into the jury-box. The verdict cannot be overturned upon anything so lacking the equality *of fact.
The appellant appears to have had a fair trial, and the judgment of the district court is affirmed.