23 S.W. 780 (Mo. 1893), The State v. Kloss

Citation:23 S.W. 780, 117 Mo. 591
Opinion Judge:Sherwood, J.
Party Name:The State v. Kloss, Appellant
Attorney:W. W. Ramsay with George Crossan and J. L. Growney for appellant. R. F. Walker, Attorney General, for the state.
Case Date:November 09, 1893
Court:Supreme Court of Missouri
 
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Page 780

23 S.W. 780 (Mo. 1893)

117 Mo. 591

The State

v.

Kloss, Appellant

Supreme Court of Missouri, Second Division

November 9, 1893

Page 781

[Copyrighted Material Omitted]

Page 782

Appeal from Nodaway Circuit Court. -- Hon. C. A. Anthony, Judge.

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 ten 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 eighty 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 seven 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 discernable, 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 toward 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 in getting in his valise," the defendant again struck the old cripple, jumped on to 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 toward 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 had 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...

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