State v. Barnett

• Decision Date: 08 May 1943
• Docket Number: 35802.
• Citation: 137 P.2d 133,156 Kan. 746
• Parties: STATE v. BARNETT.
• Court: Kansas Supreme Court

137 P.2d 133

156 Kan. 746

STATE v. BARNETT.

No. 35802.

Supreme Court of Kansas

May 8, 1943

Rehearing Denied June 19, 1943.

Syllabus by the Court.

In prosecution for assault with intent to kill following an altercation in a restaurant, testimony of prosecuting witness that on another occasion he had been in restaurant when defendant had misbehaved and had apologized was not prejudicial where it appeared that evidence was an explanation of why prosecuting witness sought further conversation with defendant after the altercation.

In prosecution for assault with intent to kill, where it was conceded that altercation preceding assault arose out of prior incident when prosecuting witness subpoenaed defendant to be a witness, testimony as to conversation between the parties at that time was admissible.

In prosecution for assault with intent to kill, where prosecuting witness was asked on cross-examination as to whether he had brought an action against defendant for medical expenses and damages, trial court properly permitted prosecuting witness on redirect examination to testify as to medical expenses incurred as result of assault.

In prosecution for assault with intent to kill arising out of quarrel in a restaurant, testimony of proprietor that on another occasion he had put defendant out of restaurant for using abusive words was improperly admitted.

In prosecution for assault with intent to kill, testimony of deputy sheriff that on another occasion he had received a call that there was a disturbance at defendant's house but that when he arrived men who were being disturbed were gone, and that defendant stated that he was going to run them off because he could not sleep, was harmless.

In prosecution for assault with intent to kill arising out of altercation at a restaurant, testimony concerning what happened in restaurant was not inadmissible because witness testified as to what happened outside restaurant when she was inside.

In prosecution for assault with intent to kill arising out of altercation in a restaurant, where defendant testified that his general conduct had been above reproach, court properly admitted in rebuttal evidence of a patron of restaurant that he had seen defendant create a disturbance there on occasion other than night of assault.

In prosecution for assault with intent to kill arising out of altercation at a restaurant, where defendant had testified that his conduct in city generally had been above reproach testimony of proprietor of restaurant that he had previously put defendant out of his place of business for using abusive words was not reversible error.

In prosecution for assault with intent to kill arising out of altercation at a restaurant, testimony that defendant subsequent to altercation, but prior to assault, appeared nervous and excited and stated that prosecuting witness had run him out of restaurant and threatened to break him in two was incompetent as a "self-serving declaration" and inadmissible as part of the "res gestae".

There was no error in refusal of requested instruction as to defendant's right to kill in defense of his home where that matter was covered in substance by instructions given.

In prosecution for assault with intent to kill, instruction reminding jury of testimony concerning quarrel between prosecuting witness and defendant and directing jury to consider that testimony as it should consider all other testimony did not require reversal.

In prosecution for assault with intent to kill, where defendant admitted that he shot prosecuting witness twice at close range with a 38-caliber revolver, there was no error in failure to instruct on assault and battery and simple assault, since under the evidence defendant was guilty of crime charged or not guilty at all. Gen.St.1935, 21-435 21-436.

Evidence sustained conviction for assault with intent to kill.

The Supreme Court cannot weigh evidence on appeal.

1. Where in a criminal prosecution the defendant argues that incompetent evidence was received, the record is examined and it is held that the admission of the evidence about which complaint is made did not prejudice the rights of the defendant.

2. In a prosecution for assault with intent to kill, the defendant offered to prove a statement made by himself to his wife a short time after a quarrel between the complaining witness and defendant and a short time before the assault was alleged to have taken place, held that this conversation was not part of the res gestae and was not admissible.

3. Where a defendant requested a particular instruction and it appears that the instruction requested was given in substance, it was not error for the trial court to refuse to give the requested instruction.

4. In a prosecution for assault with intent to kill, it is not necessary for the trial court to give an instruction on simple assault and assault and battery where there was no evidence that the defendant was guilty of the lesser offenses.

Appeal from District Court, Johnson County; Garfield A. Roberds Judge.

R. T. Barnett was convicted of assault with intent to kill and he appeals.

Judgment affirmed.

DAWSON, C. J., and SMITH and WEDELL, JJ., dissenting.

John W. Breyfogle, Jr., of Olathe, and Sam D. Parker, of Kansas City, Mo., for appellant.

Clayton Brenner, of Olathe (A. B. Mitchell, atty. gen., on the brief), for appellee.

SMITH Justice.

In this action the defendant was convicted of assault with intent to kill. He appeals.

For some years prior to the night of the alleged assault defendant and complaining witness had lived in the city of Mission, Kan. Wells, the complaining witness, practiced law and had his office in Mission and defendant was an auditor for a plow company and lived in that city. Sometime before the evening in question Wells had subpoenaed the defendant to be a witness in a case in which he was an attorney. He did not use defendant as a witness. The record is not entirely clear as to what happened but ill feeling between the two seems to date from that time, although there was evidence that occasionally they had met and had a friendly conversation. On the night of the alleged assault Wells was eating a bowl of chili and drinking a glass of beer in a restaurant. Defendant entered the restaurant and, the evidence of the state shows, began to abuse Wells about his having subpoenaed him to testify in this lawsuit. After the two men had exchanged some words defendant left the restaurant at the request of the restaurant keeper. There is some dispute in the record as to just what happened at that exact time but defendant, at any rate, went to his home about two blocks away. Wells attempted to call defendant on the phone at his home but got no answer. It was about 10:30 o'clock in the evening. On his way to his own home, which was about two blocks to the west of that of defendant, he stopped at the residence of defendant, walked up to the door and rang the bell. There is a sharp conflict in the evidence at this point. Wells testified that he said to defendant: "I would like to talk to you" and defendant said "Tom Wells, I am going to kill you. *** Do you hear me, I am going to kill you." Defendant testified that he heard the doorbell ring and that he went to the door and turned on the light and Wells hollered "Come out here you little son of a bitch or I will kick the God damn door down." Defendant testified that he said "Go away, Mr. Wells, Please go, I don't want to fight you--go home to your family and don't bother me" but that Wells kept on pounding on the door and defendant went to the bedroom and got his gun because he was afraid of Mr. Wells; that he went back to the front door, opened it and shot Wells twice. One bullet went through Wells' right ear and came out above his right eye. The record is not clear whether the other entered above Wells' heart and came out under his arm or entered under the arm and came out over the heart. The doctor testified that the head wound was a superficial one but the body wound was such as to be likely to cause death. There is no dispute but that defendant actually fired the two bullets that hit the body of Wells. Defendant claimed that he shot Wells because he was afraid of his life and that if he did not shoot Wells, Wells could enter his house and do him some bodily injury. Since the shooting was admitted the only question of fact was whether or not defendant shot Wells in self defense under the instructions of the trial court. The jury considered the evidence and instructions and found the defendant guilty, thus resolving all questions of fact against the defendant.

The defendant urges various errors on the part of the trial court, the first of which relate to the admission of evidence over his objection. These various errors argued by the defendant relate in the main to instances where witnesses were permitted to testify as to disturbances made by defendant at times other than the night of the alleged assault. The defendant argues that evidence of other disturbances at which Wells was not present, and of which he had not learned, were inadmissible and had no probative value on the question which the jury had to decide. The first one of these instances occurred when Wells was testifying. After he had told about the quarrel in the restaurant, counsel for the state attempted to interrogate him about what he did immediately after defendant left. In answer to various questions he attempted to state conversations and each time the court sustained the objection of the defendant. Finally in answer to a question "What, if anything, did you do after Mr. Barnett left the restaurant or was taken out?" he said "All right *** On other occasions Mr. Barnett had been to the Innis' place and had...