State v. Allen

• Decision Date: 08 April 1922
• Docket Number: 23,314
• Citation: 206 P. 340,111 Kan. 3
• Parties: THE STATE OF KANSAS, Appellee, v. ALBERT P. ALLEN, Appellant
• Court: Kansas Supreme Court

206 P. 340

111 Kan. 3

THE STATE OF KANSAS, Appellee, v. ALBERT P. ALLEN, Appellant

No. 23,314

Supreme Court of Kansas

April 8, 1922

Decided January, 1922

Appeal from Pawnee district court; ROSCOE WILSON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

HOMICIDE--Murder in Second Degree--No Error in Record of Conviction. The record of a prosecution, conviction and judgment in a case of homicide, wherein the defendant and two confederates armed themselves with revolvers and guns and invaded the premises of a ranchman who was in the peaceable possession of a mule claimed by the defendant, and the incidents which attended their forcible recaption of the mule and culminated in the death of the ranchman at the hands of the defendant examined, and no error discerned in the judgment rendered on the jury's verdict of murder in the second degree.

Edgar Foster, and Horace J. Foster, both of Garden City, for the appellant.

Richard J. Hopkins, attorney-general, Clement L. Wilson, George L. Reid, both of Tribune, Carr W. Taylor, of Hutchinson, and Edwin D. McKeever, of Topeka, for the appellee.

OPINION

DAWSON, J.:

This is an appeal from a conviction and judgment in a case of homicide.

This deplorable affair arose over the possession of a mule in the custody of Joe Kuttler, a ranchman in Greeley county. Kuttler notified the defendant, Albert P. Allen, by mail that he had a mule freshly marked with defendant's brand. Defendant lived on a ranch in Kearny county some forty miles away. Allen called on the sheriff to accompany him and they went to the Kuttler ranch to see the mule, and Allen claimed it as his, and that he had raised it. Kuttler likewise claimed it. Some days later, on May 24, 1918, the defendant and his brother John and a neighbor, William Thompson, armed themselves with revolvers and guns and set out for Kuttler's ranch to recover the mule. They stayed that night at a neighbor's place, and the following morning they arrived at Kuttler's ranch, the defendant on horseback, and his brother and Thompson in a car. Defendant's evidence is that John Allen asked Kuttler if they could look at the mule and that Kuttler said, "Yes, you can look at her all you want to." Defendant caught the mule in a corral, put a rope around her neck, and led her to where Kuttler and John Allen were standing. John examined the mule, and said it was their property and that they would like to get her. Kuttler, according to defendant's evidence, said: "You will play hell getting it." He closed the gate, and called for the assistance of his wife. When she came out of the house, Thompson covered her with a gun and told her not to come another step. Thompson then turned the gun on Kuttler. He was in the corral, as also were the Allen brothers and they had guns in their hands. Kuttler was apparently a man of undaunted courage, and although he had no firearms he faced and fought his armed assailants with such weapons as he could pick up, first a two-by-four stick, then a piece of fence post, and eventually he got a hold of a piece of gas pipe, and with these makeshift weapons he confronted first one and then another of his opponents, all of whom alternately and sometimes altogether levelled their guns at him and threatened to shoot him. Kuttler's wife and two daughters, girls of twenty-two years and sixteen years respectively, were witnesses to most of the incidents leading up to the tragedy. They endeavored to assist Kuttler in keeping the corral gate shut so that the ruffians could not make off with the mule. The defendant laid violent hands on Mrs. Kuttler and badly wrenched and injured her arm. She testified:

"When I got back to the corral, my husband was standing in the corral some distance back; the mule was down near the gate, which was open about four feet, and Albert Allen had hold of the halter. My husband told me not to let them take the mule out. I would pull the gate shut and they would pull it open. I saw I could not hold it shut myself, so I called my daughter Virginia and together we pulled it shut; but the Allens would pull it open, so finally my other daughter, Chiona, came out. While we were struggling with the gate Albert Allen reached over the fence and took hold of my left arm and wrenched it. It hurt awful bad, and I screamed and said, 'Let loose; you will break my arm.' My daughter took his hand off my arm. My arm was very sore and black and blue for several days. Kuttler told me to wire the gate shut. I told Chiona to bring me some wire and I wired it shut. Albert Allen picked up a piece of timber lying in the corral and tried to break the gate down by striking it with the timber. John Allen was holding a gun on Kuttler and Thompson was also holding a gun on Kuttler. . . . John Allen struck Kuttler with a revolver over the head. Kuttler staggered back and got away from John and Albert Allen a little and picked up the gas pipe; that was the first time he had that gas pipe in his hands. He drew the gas pipe as if to strike the two Allen boys, who were crowding him. They did not come any closer, and I said, 'Don't strike, Joe; they will kill you if you do', and he lowered the gas pipe. When he lowered the gas pipe John Allen went out of the corral, went around to the west side. Albert Allen backed up towards the northwest corner of the corral, where he had the mule. He stood between the mule and Kuttler and kept his gun drawn on Kuttler. Up to that time I had not had any conversation with John Allen. Albert Allen said to Kuttler, 'God damn you, I am going to shoot you.' There had been no shots fired. Albert Allen fired two shots. Kuttler called to the girls, 'Stay with him, girls; I am not hurt yet.' John Allen came on the south side of the corral, and as he went past he said, 'We have come to kill him and we are going to kill him.' I said, 'What good will that be, to kill him? That will wreck two homes; it would sure wreck two homes and send you to the pen.' And he said, 'That is the place to go to get rich.' . . . After the two shots Kuttler backed off, away from Albert Allen; his face was towards him, but he backed around a little to the southeast, and when he was about in the center of the corral he threw his gas pipe down and ran over to the southwest corner of the corral to the cattle chute. After Kuttler threw down his gas pipe he ran to the southwest part of the corral toward the dehorning chute and raised his foot as if to climb over or get into the chute. Then Thompson hollered, 'Shoot, Albert, shoot.' Before that, I heard him say to Virginia, 'Little girl, we don't want to kill your father, but we are going to kill him.' When Thompson said, 'Shoot, Albert, shoot,' Albert shot him. Kuttler was right at the chute; he turned and ran east and Allen shot again, and Kuttler fell. . . . He was about twenty-five or thirty feet from Kuttler. When Albert fired the third shot Kuttler turned and ran and fell about three feet from the gate. There were four shots altogether. When the fourth shot was fired, Kuttler said, 'Mother, he has killed me.' The girls and I unwired the gate and went into the corral. . . . The girls and I went to Kuttler. We helped him up and helped him walk to the gate, and as he was walking out of the gate he said, 'Don't let them take the mule.' Albert Allen led the mule from the lot and took him away."

Virginia Kuttler testified:

"When Albert Allen fired the last shot . . . I heard father say, 'Mother, that has killed me.' We went into the pen and father was down on his knees and had one arm up. He was . . . about twenty or twenty-five feet from Albert Allen when he fired the last shot. The gas pipe was lying close to the chute over to the southwest corner of the pen, about ten or fifteen feet from where father was on his knees."

Chiona Kuttler testified:

"When I came out of the house for the last time from phoning [to the sheriff] I heard Thompson say, 'Shoot, Albert, shoot.' . . . I looked in the pen and father was going from the chute towards mamma, . . . I seen father. He went almost in a run over to the chute and put his foot up as though he would climb through the chute and get out before Albert Allen shot again, and he started then over to the southeast corner of the pen, where mother was standing. He got about half way across the corral, but the shot was fired and he fell. Thompson made the statement with reference to that call to shoot just a little before the third shot. When the fourth shot was fired Albert Allen was facing the south. Father was running to the southeast corner of the pen, but all the time looking at Albert Allen. I was looking at father when he fell. Albert Allen was between twenty-five and thirty feet away from father when he fired the shot. As soon as father fell he got up on his right knee and hand and put his left hand to his side and called out, 'Oh, mother, he has killed me.' We went in and carried father out. Father did not have anything in his hand when the fourth shot was fired. When he started to run to the cattle chute he dropped the gas pipe. . . . The gas pipe was quite a ways from him."

According to defendant's evidence, one of the incidents of the affray was that Kuttler advanced upon defendant with the gas pipe. Defendant testified:

"I told him to stay back. He stopped and stepped back a trifle and we stood there some little time and then he kind of moved towards me and I stepped back and he had the gas pipe in his hands this way (indicates) ready to strike and I stepped back and Bill hollered at me. . . . I turned to look that way and Thompson, who was on the fence on the east side at that time hollered to me to look out, Allen. I straightened up just in time to see him striking at me and I dodged. He struck at me or struck at...