State v. Kindred

Decision Date07 February 1899
CourtMissouri Supreme Court
PartiesSTATE v. KINDRED.<SMALL><SUP>1</SUP></SMALL>

8. Accused entered the store of deceased and his brother, and commenced a quarrel, whereupon he was ordered from the place. He started to leave, moving back sideways, with deceased and his brother following him at a distance of about six feet. Neither of them was armed, nor did they make any other demonstrations against him, and before they got to the door accused drew a revolver, and shot both of them. He testified that, after being told to leave, he stated to deceased to let him alone; that he would go; but deceased and his brother kept coming after him at a distance of eight feet, with their hands in their hip pockets, calling him vile names, and the brother kicked at him, whereupon he fired, killing one and wounding the other. Held, that a charge on manslaughter in any degree was properly refused.

9. Accused cannot complain of the failure to charge on manslaughter where there was no evidence of manslaughter in any degree.

10. Accused's intoxication at the time of committing the homicide, even to such extent that his reason was overthrown, neither excuses nor justifies the crime.

Appeal from circuit court, Mercer county; P. C. Stepp, Judge.

Peter Kindred was convicted of murder, and he appeals. Affirmed.

On the 5th day of February, 1898, Peter Kindred, the defendant herein, shot and killed Andrew A. Alley in the town of Mercer, in Mercer county, Mo. At the regular March term of the circuit court of said county defendant was indicted. Afterwards, on the 24th day of March, 1898, the record recites that the court house of Mercer county was destroyed by fire, and all the papers in said cause, together with the indictment against defendant, were destroyed by fire. At the adjourned March term, 1898, of said court a new grand jury was ordered and impaneled by the court, and on May 23, 1898, returned a new indictment for murder against defendant. This was duly served on defendant on the morning of the 24th of May. On the 25th day of May defendant filed an application for a change of venue, which was heard by the court on the same day, and ordered overruled. On the same day defendant made an application for a continuance, which was heard and denied by the court. Defendant was thereupon duly arraigned, and pleaded not guilty to the charge in the indictment. A special venire was issued returnable for May 26th, which was duly served, and a panel of 40 jurors was obtained on that day. On May 27th a jury of 12 was selected, tried, and sworn to try the case. The cause thereupon proceeded, and on May 29, 1898, the said jury returned a verdict of guilty of murder in the first degree. Motions for a new trial and in arrest of judgment were filed in due time, heard, and overruled, and defendant was sentenced to be hung on July 8, 1898. An appeal to this court was prayed and granted, and leave to file a bill of exceptions by September 1, 1898, was granted. The bill of exceptions was perfected and filed on August 25, 1898.

These facts seem to be established by the record: Peter Kindred, the defendant, is a young man, about 22 years old. He lived on a farm near the town of Mercer, in Mercer county, in this state. On the 5th day of February, 1898, he left his home, and went to Mercer, where he took a train for Lineville. He remained in Lineville until 1 o'clock in the afternoon of that day. While there he obtained some whisky from a drug store. He returned to Mercer about 2 o'clock. His subsequent movements are traced as follows: He visited a picture gallery, a restaurant, and a blacksmith shop. He then went to the hardware store of Andrew and Joseph Alley, in said town, about 3 o'clock. It appears that prior to and at this time defendant was indebted to the firm of Alley Bros. in a small sum, for which they had obtained judgment. The store room was about 90 feet in length. The office was in the rear end from the street or west entrance. The store was heated by a stove near the rear end. At the time defendant came into the store there were in the store Andrew A. Alley, in the cashier's office, at work, Joseph Alley, Clint McIntosh, Mr. Ganen, Thomas Wells, James Talbott, and Don. Alley, sitting about and around the heating stove. When defendant entered the store, he went at once to the Little office in the rear, where Andrew Alley, the deceased, was engaged on his books. He was heard to say to Andrew that he wanted to settle with him. Andrew reached over to get the books to look at defendant's account, whereupon defendant interrupted him by saying, "No, I want to fight it out." Andrew replied that he did not settle his accounts that way. Defendant then said, "You don't pay your debts." Andrew replied, "You can't find a man in this country that says I owe him a dollar and didn't pay it." Thereupon Joseph Alley got up, and said to defendant, "Pete, you are looking for trouble." Defendant then backed off towards the counter, with his hand in his pocket, and dared Joseph out to fight. Joseph replied that he was no fighting cock, and that defendant was not in a good condition to settle that day; to come back some other day. Defendant then swore he could whip any Alley. Joseph then ordered him out of the store. Defendant started to the front door, and Joseph and Andrew Alley followed him down the aisle created by the counter on one side and a row of stoves which occupied the middle of the store. On the way to the door defendant moved back sideways. The state's evidence tended to prove that neither Joseph nor Andrew Alley got closer to defendant than five or six feet; that they were not saying anything as they moved towards the front door; that neither of them was armed, and that they neither struck nor kicked defendant. When they had gone to a point about 20 feet from the front door, defendant drew his revolver, and shot Joseph Alley in the right side, and then shot Andrew. One of the balls entered a little to the right of the lower portion of the spinal cord, the other grazed the back of the neck. A post mortem disclosed it entered the bowels, and produced internal hemorrhage, and caused his death that afternoon. After Joseph and Andrew were both wounded, Joseph made his way back to the office, and got a revolver, and attempted to follow defendant; but it was taken from him, and he soon succumbed to his wound. The surgeon found the ball had punctured his intestines six times, and they stitched them, thus saving his life. Immediately after firing the third shot, defendant left the building.

John Glashen testified he saw defendant come out of the store of Alley Bros. immediately after the firing, with his revolver in his hand. He jumped out of the door on the sidewalk, and the next jump he landed in the road, and ran southeast until he got south of the furniture store, and ran into John Alley's store. Witness and the constable, Harvey Whan, went to Alley's store, to arrest defendant. When they got there, they saw defendant and his brother George going west. They headed them off, and arrested defendant. The constable searched them, and found a revolver on George Kindred, with three chambers empty and two loaded. It was 32 caliber.

Defendant offered a number of witnesses to prove his good character, and it was well established. He testified in his own behalf. His account of the difficulty is substantially as follows: On the day in question he went into the deceased's store to buy an ax, and told Mr. Andrew Alley, the deceased, that he wanted to buy an ax. The deceased told him that he had to settle an old account first, and defendant told deceased that he didn't owe him anything, when the deceased called him a ____ liar. Andrew was sitting in the corner, at his desk. "They commenced...

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  • State v. Davis
    • United States
    • United States State Supreme Court of Missouri
    • July 11, 1935
    ......(2d) 600. (5) There is no proof that the verdict as rendered be a quotient punishment and not the result of deliberations. State v. Adams, 318 Mo. 712, 300 S.W. 742. (6) The argument of the prosecuting attorney contains no inflammatory statements, under the evidence of this case. State v. Kindred, 49 S.W. 850, 148 Mo. 270; State v. Rowe, 24 S.W. (2d) 1038, 324 Mo. 863; State v. Shawley, 67 S.W. (2d) 87; State v. Eaton, 292 S.W. 74, 316 Mo. 995; State v. Jones, 256 S.W. 791.         TIPTON, P.J. .         In the Circuit Court of Jackson County, Missouri, the appellant was ......
  • State v. Davis
    • United States
    • United States State Supreme Court of Missouri
    • July 11, 1935
    ......(5) There is no proof. that the verdict as rendered be a quotient punishment and not. the result of deliberations. State v. Adams, 318 Mo. 712, 300 S.W. 742. (6) The argument of the prosecuting. attorney contains no inflammatory statements, under the. evidence of this case. State v. Kindred, 49 S.W. 850, 148 Mo. 270; State v. Rowe, 24 S.W.2d 1038, 324. Mo. 863; State v. Shawley, 67 S.W.2d 87; State. v. Eaton, 292 S.W. 74, 316 Mo. 995; State v. Jones, 256. S.W. 791. . .          . OPINION. . .          Tipton,. P. J. . .           [337. Mo. ......
  • The State v. Kindred
    • United States
    • United States State Supreme Court of Missouri
    • February 21, 1899
  • State v. Conley
    • United States
    • United States State Supreme Court of Missouri
    • February 17, 1914
    ......In State v. Kindred, 148 Mo. 270 [49 S. W. 845], the indictment was in precisely the same form as in the case at bar; in fact, no one can read the indictment in the case now before us and escape the conclusion that the pleader was following the precedents as laid down in the Kindred Case. Gantt, J., in responding to ......
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