State v. Kloss

• Decision Date: 09 November 1893
• Citation: 23 S.W. 780,117 Mo. 591
• Parties: STATE v. KLOSS.
• Court: Missouri Supreme Court

23 S.W. 780

117 Mo. 591

STATE v. KLOSS.

Supreme Court of Missouri, Division No. 2.

November 9, 1893.

MURDER — MANSLAUGHTER — SELF-DEFENSE.

1. The fact that an aged cripple replies to insulting questions asked him by defendant, a young and vigorous man, "none of your d____n business," and shoves defendant, and raises his

hand as if to strike defendant, does not reduce to manslaughter a series of brutal assaults on the old man by defendant, who knocked him down, and kicked him to death; and defendant cannot complain of a verdict finding him guilty of murder in the second degree.

2. The fact that some one, after the old man had been twice knocked down, called out that he was getting his gun, did not give defendant the right to again attack and jump on him, without even looking to see if he was getting or had a pistol; and the refusal of the court to instruct on the law of self-defense was proper.

Appeal from circuit court, Nodaway county; C. A. Anthony, Judge.

Albert Kloss was convicted of murder in the second degree, and appeals. Affirmed.

The other facts fully appear in the following statement by SHERWOOD, J.:

The defendant killed Patrick H. Thompson by beating him with his fist, and kicking him to death. He was indicted, charged with murder in the first degree, and on trial was convicted of murder in the second degree; his punishment being assessed at 10 years in the penitentiary, the lowest term of punishment provided by law for the perpetration of that crime; the trial court refusing or declining to give any instructions for a higher grade of crime than that of which defendant was found guilty. The substance of the evidence adduced at the trial is as follows:

Patrick H. Thompson was an aged man, — some 80 years old, as testified to by Ashford, who had known him several years. He was a spectacle peddler, by occupation; a cripple, who used a crutch and a cane to walk with; and on the occasion in question he supported himself with his crutch, while he held the cane over his shoulder, and on it he carried a satchel which contained his small stock in trade, — his little all. On February 15, 1893, about 7 o'clock in the evening of that day, he was wending his way slowly along the public road which runs along the dividing line between Andrew and Nodaway counties. He had chosen the latter county as the scene of his humble labors. While he was proceeding along the road, it being a starlight night, and objects quite easily discernible, he was overtaken by Al. Cunningham and defendant, Albert Kloss, who were driving in a buggy. They drove on to Elijah Jackson's house, near by, stopping to inquire about some colts. There, Kloss, who was wholly unacquainted with Thompson, told young Jackson, who came up to the road in answer to his call: "There is an old man down there in the road. He will burn the barn down, unless you let him stay at your house all night." Thereupon, at defendant's invitation, young Jackson went down with him to the road to see Thompson, and met him coming up the road with his crutch under his arm, a cane over his shoulder, with a satchel on it. The defendant began a conversation with him by saying, "Howdy do, old man? What are you doing?" Old man Thompson said, "None of your business;" defendant, "You want a night's lodging?" Thompson, "Yes;" defendant, "You can't stay;" Thompson, "Do you live up there?" defendant, "Certainly, I do." Thompson, "Can't you keep me all night?" defendant, "No; what are you going to do about it?" Thompson, "None of your business," — when defendant struck him in the face, knocking him down, and kicking him in the side. About this time, Cunningham appeared, and asked defendant why he had struck him, when defendant said, "I have struck him down." Just then the old man started to raise his head, and the defendant said, "Don't raise your head, or I'll stomp the liver out of you;" and he then, the second time, knocked him down, and kicked him. The old man begged the boys to help him up, and not let defendant strike him any more. He was raised to his feet, but — unable to stand, or to hold in his hands his crutch or cane — was laid back upon the ground. About this time a Mr. Marshall came down the road, and some one suggested that he go and get a lantern, which he did; and, when he returned, defendant said, "he was very sorry he had knocked him (the old man) down, and said he would not do it any more." They then attempted to get the old man up again, who, being unable to stand, reached out towards defendant, to help himself up, when defendant said, "G____d d____n you! you can't stick your hands in my pocket," and again struck the old man, and knocked him down, when all present told defendant to stop, and begged him not to hit the old man any more. About that time defendant claimed to have lost his ring, and the boys took the lantern, and began making search for it; and when some one said, "The old man is getting in his valise," the defendant again struck the old cripple, jumped onto him, and began beating him in the face, and kicking him in the head. With much difficulty, the four young men who were present pulled defendant off of him; and even after that, as the old man attempted to raise his head from the ground, the defendant again kicked him in the head. The defendant, at the time, had on a pair of heavy boots. The testimony, except that of defendant, shows that no resistance of any character, no assault, no violent or abusive language, was made, used, or applied by the old peddler towards the defendant; that his assault on this harmless old cripple was unprovoked and without excuse. The crowd dispersed, when young Jackson went home, and, when his father came back home, narrated his trouble to him; and they, with some of the neighbors, returned; found the old man where the assault has been committed. They then carried him to the home of Mr. Jackson, where they bathed him, applied hot, wet cloths to his feet, and finally sent for a doctor who, upon examination, found that Thompson's skull had been fractured, — "a dint in his head that you could lay your finger in;" his nose seemed broken, and several severe bruises and cuts inflicted upon his face and head and side, — from the result of which, two days later, (February 17th,) he died. The attending physician stated that death was occasioned by the injuries inflicted by defendant. No autopsy was held on the deceased, and so the extent of his injuries cannot be known. Thompson was unconscious from the time he was carried from the road to Jackson's home. The testimony is that the assault was committed, and most of the injuries inflicted, on the north side of the road, and in Nodaway county, and that deceased died in that county. After the old man died, his clothing, valise, and effects were searched, and no weapons of any character were found. A warrant being issued immediately for the arrest of defendant, he could not be found, but about a week later was located and arrested in Oklahoma territory, whither he had fled, and where he was in jail.

There was testimony adduced for the defense to the effect that, just before the defendant jumped on the old man for the last time, some one cried, "Look out! he is getting his gun;" but the testimony of some of the witnesses is that the only thing uttered was, "The old man is getting into his satchel." There was also testimony that as the cry mentioned was made, whatever it was, the defendant said, as he sprang on the old man with both feet, and as he did so, "God d_____n you, you can't draw no gun on me." But the defendant denied that he made use of any such exclamation. He also denied that he told young Jackson about a man being down the road who would burn the barn, etc., though this is positively testified to by Jackson. The defendant attempted to excuse his conduct by saying that old man Thompson told him, in response to his question, "It's none of your d_____n business," and shoved him, and raised his hand as if he was going to strike him, etc.; but he does not deny the statement of Jackson that he told old man Thompson, "Don't raise your head, or I'll stomp the liver out of you," nor does he deny the other statements heretofore related. He claims, indeed, that he was acting in self-defense when he jumped on the aged, decrepit, and crippled man the third and last time; that he was afraid that the poor old creature would shoot him or hurt him, — at a time, too, when all the evidence shows that the old man was incapable of raising his head from the ground, only for a moment, and that, after receiving his coup de grace from the brutal kick of defendant, "his head dropped to the ground, and he never moved his head from the ground no more." Nor did he speak afterwards.

This, in brief, was the testimony, and upon that the trial court, of its own motion, eliminated the element of murder in the first degree from the indictment, and instructed the jury as to that offense in the second degree. An instruction was also given as to manslaughter in the second degree....