80 Kan. 389 | Kan. | 1909
The opinion of the court was delivered by
The appellant was charged with murder in the first degree. He was found guilty of murder in the second degree and sentenced to a term in the penitentiary of not less than ten nor more than twelve years.
At the time of the homicide the appellant and one Mary Wilson had been living together in a house at the foot of State street, on the river bank, in Kansas City. About 'thirty feet distant was a house occupied by' Frank Doyle, the deceased. On the 31'st day of May, 1908, at about dusk, the appellant returned from his work. At this time Mary Wilson was at the house of Frank Doyle. She had the key to her house with her. The appellant, being unable to enter the house where he lived, went to the house where the deceased lived to inquire for her. In the house at this time were
The appellant testified for himself, and there was testimony given by Mary Wilson which tended to corroborate it, that at the time appellant asked for the key Doyle said “What the hell do you care whether she goes home or not?” and that he started toward the kitchen table, picking up a large butcher-knife, and assumed a threatening attitude toward the appellant.
It is ufged that the evidence is not sufficient to sustain the verdict, but the testimony of Ida Pierce, Julia Duffy and William Poynter was sufficient to support every contention made by the state.
Complaint is made that the trial court failed to instruct the jury fully upon the law of self-defense; that the jury should have been instructed whether or not the appellant was bound to prove his plea of self-defense. The court instructed the jury as to the burden of proof, and stated fairly though in general terms the law as to self-defense. It was not reversible error to fail to expand the instructions or to apply them to the peculiar facts in the case, inasmuch as no instructions were asked by th'e appellant. (The State v. Pfefferle, 36 Kan. 90, 96; The State v. Peterson, 38 Kan. 204; The State v. Rook, 42 Kan. 419; The State v. Sorter, 52 Kan. 531, 545.)
The same may be said of the failure to instruct particularly with reference to previous threats made by deceased. In one instruction the jury were told that if the circumstances were sufficient to raise in the mind of the appellant a belief that the supposed assailant intended to do him bodily harm he had a right to stand his ground and use such- force or means within his power as reasonably seemed to him at that moment to be necessary for his protection, and in another they were instructed that if the affray was brought on by the deliberate, wrongful act of the appellant the plea of self-defense was futile. It is argued in this connection that there was no evidence on the part of the state
We have been unable to discover any error in the record affecting the substantial rights of the appellant, and therefore the judgment is affirmed.