24 Kan. 445 | Kan. | 1880
The opinion of the court was delivered by
In the court below, the appellant, William Stackhouse, being jointly indicted with his brother Charles, was placed upon his separate trial for the crime of murder in. the first degree. Upon the first trial the jury failed to agree, and upon the second trial, had at an adjourned session of the same term, the jury found the appellant guilty of murder in the second degree. He made motions for a new trial, and in arrest of judgment, which motions being severally overruled by the court, he was sentenced to confinement at hard labor ■in the penitentiary of the state for a term of twelve years, from which sentence and judgment he appeals to this court.
The first error alleged is, the overruling of his motion to quash the indictment. Within repeated rulings of this court the indictment must be adjudged sufficient. It charges a deliberate and premeditated intent to kill and murder; that with this intent the defendants made a deliberate and premeditated assault; that this assault was with a rifle, or gun,
A second allegation of error is, that the verdict was against the evidence. This also must be overruled. The record is very voluminous, filling two bound volumes of some 800 pages. We cannot, therefore, notice the various matters of testimony. These things, however, are undisputed: The deceased had been living upon a tract of land for two years or more, claiming it as his residence and intending to acquire title to it from the government. In March, 1879, one Wilcox, denying his right to obtain title from the government, commenced a residence upon the land. The building erected by Wilcox, the deceased tore down. On May 28th, Wilcox commenced another building. In the afternoon of that day he went to the town of Hays, returning a little after sundown. As he neared the place where he had commenced his new building, the defendant and his brother came to the wagon, one with a rifle and the other with a shot-gun. Wilcox got out, and with them went towards this new building. He had a Colt’s navy pistol. As they neared the building the deceased appeared, and one of the three parties approaching shot and killed him. The claim of the state was two-fold: that the defendant was the one who fired the fatal shot; or, if not, that the parties went there in pursuance of a mutual purpose to commit a felony, and that in the attempt to commit that felony, the death was caused. Wilcox testified that defendant was, in his opinion, the party who shot-. The defendant’s brother fled the country that night, has not since been heard from, and was not a witness at the trial.- Defendant testified that he did not shoot, and that it was his brother who did. Other witnesses, claiming to have
Upon the other branch of the case, a mutual intent to commit a felony, there was also considerable testimony, to wit: a bitter feeling on the part of defendant toward deceased, prior threats, his appearance at the time with a deadly weapon, his calling to Wilcox to leave the wagon and go to the place of the homicide, his proposition of violence to the deceased at that time as testified to by several witnesses. Indeed, it may safely be asserted that upon the testimony of the state alone, the jury could not well have done otherwise than come to- the conclusion that the defendant personally fired the fatal shot, or at the least that he was one of the three who, bent on violence to the deceased, approached and killed him. Either makes him guilty and sustains the verdict, and the question of contradiction between the state and defendant .is
Error is also alleged in the matter of the admission of testimony. The principal line of objection here is, to testimony ■offered for the purpose of showing the state of mind of defendant toward the deceased. This testimony consisted of ■evidence of threats, expressions of dislike, and of the opinions of witnesses, based upon what they had seen and heard, that the parties were not on good terms. That evidence of threats and of expressions of dislike is competent, cannot be doubted. Such evidence strictly shows the state of mind of defendant toward the deceased, for out of the abundance of the heart the mouth speaketh. It tends to do away with the presumption which exists against any man’s doing injury to his neighbor. It tends to show a willingness to do him harm. Where one of three parties shoots and kills, and it is doubtful which one of them does this,, evidence that one had prior thereto threatened to kill, or even that he hated the deceased, points to that one as the guilty party. It also explains the character of the act, makes against an excuse of self-defense and shows a motive for the crime. (The State v. Horne, 9 Kas. 119.)
In reference to the matter of opinion, this is the way the testimony was introduced: One witness was asked whether or not, from what he had heard the defendant say, he should say that defendant and deceased were on good or bad terms, and he replied that he should say that they were on bad terms. Another was asked, “Do you know on what terms, as to friendship, this defendant was with Samuel Nipple just previous to this occurrence? ” and he replied, “ Why, they were not on good terms.” This inquiry was followed by one as to how he knew, and the reply was that he had heard defendant-say so. Another witness was asked a similar .question, and he replied that he knew that they were not on good terms. Was this error? In a certain sense, this was calling for the opinions of these witnesses, and that, too, not upon matters of science or skill. And yet such opinions are often
Again: Counsel criticise several portions of the charge. Taking a separate paragraph and disconnecting it from the undisputed facts of the case, and some of those criticisms have force — as, for instance, the criticism on paragraph No. 31. Rut the charge must be taken as a whole, and read in the light of the facts of the case; and where certain facts are undisputed, they enter into and qualify the instructions as given. So read, it does not appear but that the charge clearly, fully, and accurately presented the law to the jury.
So far as the objections to the juror C. A. Faxon are concerned, the evidence fully sustains the action of the court in finding against them. And while affidavits are ordinarily the only testimony received upon motions, we suppose it is competent for the court in its discretion and in furtherance of justice to call the witnesses before it, and have them examined and cross-examined orally, in its presence. We'all know how often an affidavit speaks the language of counsel rather than that of the witness, or fails to state all the facts; and great injustice might be done if the court had no power to bring the witnesses before it and have them examined in its presence. We do not decide that a party has a right to proceed in this way, but simply that the court may permit it.
We pass now to the only remaining question which we deem it necessary to notice, and that is the failure of the court to admonish the jury at every separation. The facts in reference to this are, as stated by the judge — “that this did not occur at any adjournment, but only when a short recess was had of from three to five minutes or thereabouts, and at two of the recesses in the fore part of the trial the jury were admonished also, and told (as at the first adjournment and admonition) that this admonition was always upon them when out of the jury-box until the trial should dose.” The statute in reference to this matter reads:
“When jurors are permitted to separate after being im
In The State v. Mulkins, 18 Kas. 16, it appeared that the jury were permitted to separate at night, and the case was adjourned to the next morning without any admonition, and also that one of the jurors was approached during the separation by an outsider, and an opinion expressed concerning the case. It was held that substantial error was shown, compelling a new trial. The rule announced was, that there was error in disregarding the mandate of the statute, and that in the absence of any showing by the state, it would be presumed that such error wrought substantial wrong to the defendant. Does that rule obtain here and compel a reversal ? Nothing is shown by the state as to what took place during these separations. Hence, counsel rely upon that decision as conclusive. It appears from the affidavits filed, as well as from the bill of exceptions, that these recesses occurred some seven times during the progress of the trial. Whether during these recesses the jurors left the court room or simply rested themselves by standing or moving about in the presence of the court, we are not advised. It may have been that these were simply tp enable a juror to retire for a moment, or while waiting for a witness, or to enable counsel to consult. Now the mandate of the statute is not a mere technical, arbitrary rule, but one designed to protect the substantial rights of the accused. Formerly the jury were not allowed to separate at all, but remained in charge of an officer from the time they were impanneled until the return of the verdict. By our statute, separation is permitted, but in lieu thereof this admonition from the court is réquired, and such admonition ought always to be given. But under the old practice, if from the record it appeared that no prejudice could have resulted from such separation, the error was
Nothing else requiring notice, the judgment will be affirmed.