State v. Alexander

• Decision Date: 12 April 1913
• Parties: STATE v. ALEXANDER ET AL.
• Court: Kansas Supreme Court

131 P. 139

89 Kan. 422

STATE v. ALEXANDER ET AL.

Supreme Court of Kansas

April 12, 1913

Syllabus

The rule that a party is not allowed to impeach his own witness is subject to exceptions. Where a witness for the state had testified on direct examination to a commotion and to the appearance of a wounded man, and on cross-examination had testified to exclamations made by the wounded man, testimony of another witness for the state that the witness first referred to was drunk at the time is considered admissible in the discretion of the court.

Where a wounded man coming out of a stairway from an upper room exclaimed, "I’m shot!" and then said, "Take me home," and being asked "Who shot you?" gave the name of one of three persons who were with him in the room immediately before the shooting, and the wounded man died in about 10 minutes afterwards, his exclamation and answer are admissible in evidence.

Evidence should not be admitted to contradict a statement of a witness elicited upon cross-examination upon a purely collateral matter, which does not tend to prove or disprove an issue in the case; the contradictory evidence being offered by the party eliciting the statement.

A witness for the state testified to an encounter between several persons in which one was shot. A defendant who was present at the affray testified that another, also present fired the shot. He was then asked whether there was a scuffle before the shooting. In the circumstances shown the evidence was admissible, and an objection on the ground that the question was leading was not well taken, although the objection might have been avoided by relating the entire occurrence.

A remark in the closing argument for the state in a criminal action about turning the defendants loose to get into trouble in other communities for carrying razors is improper, where the evidence does not show that they have been in trouble caused in that way. Upon timely objection an instruction should have been given to prevent misapprehension by the jury.

An instruction that the jury have nothing to do with the charge against a person not on trial but against whom there is evidence of guilt may be understood to refer not only to the information, but to the evidence imputing guilt, and if so understood is misleading. A clause should have been added to make the meaning clear.

Appeal from District Court, Edwards County.

Charles Alexander and Floyd Alexander were convicted of manslaughter in the fourth degree, and they appeal. Reversed and remanded.

Chas. E. Lobdell, of Great Bend, and Chas. A. Baker, of Kinsley, for appellants.

Jno. S. Dawson, Atty. Gen., and M. A. Merten, of Kinsley, for appellee.

OPINION

BENSON, J.

The defendants appeal from a conviction for manslaughter in the fourth degree in killing H. C. Bussenbark at Belpre, in Edwards county.

Chas. Alexander and H. W. Bennett met in a poolroom and engaged in wrestling and in drinking whisky. For further wrestling and to procure more whisky, Bennett, who was a barber and had his chair in the poolroom, obtained a key from the proprietor, and the two men went upstairs to a hall above, where they continued drinking and wrestling. Bussenbark was a bystander in the poolroom who had not joined in the drinking, but accompanied the others to the hall. A few minutes after the men left the poolroom, the proprietor heard a noise as of chairs being overturned above, and going to the street door saw Bussenbark coming down the stairs from the hall, and heard him exclaim, "I’m shot!" and also heard him say, "Take me home." Asked who shot him, he answered "Bennett." He was taken into a restaurant near by, and died in about 10 minutes. Floyd Alexander followed the wounded man down the front stairs, and the evidence tends to show that he assisted him in leaving the hall. Chas. Alexander came down the back stairs, also in a wounded condition. Bennett, badly intoxicated, sat down in a chair in the hall, and fired a shot down through the floor.

A witness who had gone into the hall by the back stairway for a drink of whisky and stopped in a dressing room testified that through a partially opened door he "saw the two Alexanders, Bussenbark, and Bennett at the head of the stairs. * * * Heard conversation among party as to wrestling. Heard Bennett say, ‘Here, Curley, you take these things while I go on the mat.’ Did not know what was referred to. In about 10 minutes after that heard some one say in tone of surprise rather than anger, ‘Why, you son of a bitch!’ Didn’t know who said this. Opened door then and looked out. Saw ‘Red’ (Chas.) Alexander hit Bennett a blow on the top of the head, and knock him down. Heard Red say, ‘Give me that gun,’ and turn, facing Curley (Floyd). The latter started towards his brother. Bussenbark stepped forward, and said, ‘No, you don’t.’ At this time Bennett rose and got into the mê lée. They mixed up for a minute and the gun was discharged. Bussenbark cried out that he was shot. Curley and Bussenbark left the opera house by the front door, the former assisting Bussenbark. Bennett and Red were grappled. Bennett had a ‘hammerlock’ hold on Alexander. As they turned around in the scuffle witness saw the gun ‘in both their hands, but rather in Alexander’s hand than in Bennett’s and Bennett had a hold of Alexander’s hand.’ This was the first time witness had seen the gun. While in this position the gun was fired again. Then Alexander said, ‘If you’ll let me go, I’ll get out of here.’ Bennett said, ‘Go, damn you.’ As Alexander ran for the back stair, Bennett fired at him, but seemed to miss. Then Bennett sat down on a chair like a man exhausted. * * * Did not see the gun at any time till after Bussenbark and Curley had left the opera house. Did not know ‘Red’ Alexander’s voice, but saw his lips move when he said, ‘Give me that gun.’ Didn’t know to whom this was addressed."

Floyd Alexander testified that he did not go up the front stairs with the others, but went later up the back stairway.

The pistol used in the affray belonged to Bennett, and was found in the chair in which he sat down after the affray. This weapon was a Colts automatic with barrel two inches in length. Four shells were found in the hall, also a bullet hole through the floor, and one in the wall. A bullet was found in the wound in Chas. Alexander’s back. The defendants are brothers. Floyd is 21 years of age and Charles is older. Their home is in Attica. They have been engaged as laborers at Hutchinson, Macksville, and in the country about for several years. Both have been arrested for disturbing the peace and for assault, and one of them for selling intoxicating liquor. Each of them testified that they saw Bennett fire the shot that wounded Bussenbark, and that neither of them ever held the pistol. Chas. Alexander in his direct examination was asked if there had been a scuffle between himself and Bennett before the shooting, but upon an objection that the question...