State v. Beatty

• Decision Date: 07 February 1891
• Citation: 45 Kan. 492,25 P. 899
• Parties: THE STATE OF KANSAS v. JAMES M. BEATTY
• Court: Kansas Supreme Court

25 P. 899

45 Kan. 492

THE STATE OF KANSAS v. JAMES M. BEATTY

Supreme Court of Kansas

February 7, 1891

Appeal from Harper District Court.

PROSECUTION for murder in the first degree. From a conviction at the March term, 1890, the defendant Beatty appeals. The material facts fully appear in the opinion, filed on February 7, 1891.

Judgment reversed.

Shepard Grove & Shepard, and A. N. Cherry, for appellant.

:L. B Kellogg, attorney general, and Geo. E. McMahon, county attorney, for The State.

SIMPSON C. All the Justices concurring.

OPINION

SIMPSON, C.:

At the March term, 1890, of the district court of Harper county, the appellant, James M. Beatty, was convicted of murder in the first degree, for the unlawful killing of one James W. Hutchinson. The material facts developed at the trial are, that on the morning of July 24, 1889, the dead body of James W. Hutchinson was found on the floor of his house, situate in the city of Anthony. He had been killed by being struck in the back by several bullets, or pieces of bullets, that had entered his vital organs, tearing and lacerating them, producing probably instantaneous death. The shot had been fired through the south window of the room in which he had been sitting upon a chair, convenient to a table on which there was a lighted lamp. The lower half of the sash of the window had been removed, and a light screen or netting had been fastened over the opening. This netting was torn and powder burned, and the right side of the window frame was burned and blackened by powder, parts of the gun-wadding adhered to the body, and other parts were scattered around the room in which the body was found. It seems that a muzzle-loading gun had been used, and that the muzzle had been held close to the screen or netting, at the time the fatal shot was fired. The deceased had been seen and conversed with by his neighbors on the preceding evening; a light had been observed after dark in this room; an explosion as of a heavily-loaded gun had been heard by his neighbors between nine and ten o'clock the night before, and immediately after the shot the light in his room disappeared. The wife and four children of the deceased were at the time of his death absent from home, on a visit to their friends in the state of Iowa, and he was consequently occupying the house alone. Hutchinson at the time of his death was twenty-nine years old. He had been married twelve years, and was dependent on his daily labor for the support of his family. He had been a resident of Anthony for four years, and was a quiet, inoffensive man.

The appellant, James M. Beatty, had a wife and four children. He was a section-boss on one of the railroads, and also owned a quarter-section of land in Harper county. His wife had cone to the state of Iowa in the preceding February with some of her children, and the remainder followed her in June. There is some evidence tending to show that Beatty did not intend to live with her again. After the departure of his wife, the wife of the deceased did washing, baking and mending for Beatty, and for some time in June he took his meals at the house of the deceased, still sleeping at his own. It appears from the evidence of the wife of the deceased, that the appellant talked to her several times about going to the state of Iowa with him; that he told her that he had parted with his wife forever; that her husband did not treat her right; that she had to work too hard; that if she was his woman she would not have to work so much; that he could do better by her than her husband had done; that he had furnished her money to buy tickets for her trip to Iowa; and gave her funds with which to buy a trunk and a hat; and had instructed her to tell her husband that this money was sent to her by a brother in Iowa; but the woman strongly denies that any other improper language ever passed between them, or that any improper relations existed. The killing occurred shortly after 9 o'clock P.M.; the appellant is shown to have purchased a pistol on the 22d of July, and some musket caps; later, on the same day, he purchased powder. He was in a deep railroad cut on that day firing the pistol. On this day, the appellant boxed some of his household goods and shipped them to Iowa, and sold the balance to a second-hand dealer. On the morning of the 23d of July, he stated to a neighbor that he had stayed all night with Hutchinson, the deceased, and that Hutchinson appeared down-hearted and despondent. On the 23d the appellant was seen with an old musket that he said had not been in use for nine or ten years; he went to a hardware store and purchased a box of cartridges; the next morning this box was found in his room, ten cartridges being missing, and eight wounds were found on the body produced by bullets. Early in the morning, after the body was found, footprints were discovered leading from a railroad track toward the house of the deceased. They were first observed at a point northeast of the house; they were traced west, making a circle around to the south side of the house, the side from which the fatal shot was fired. This peculiarity was noticed in one of the tracks: the upper had been torn from the sole of the right shoe near the toe, and extending, formed a lip, which made a distinct impression at each step where the ground was soft. These tracks were again traced going west from the south side of the house of the deceased. From the length of the stride, it seemed as if the person who made the tracks had been running, and had, on reaching the railroad track west of the house, plunged over the track into a pool of water formed by an embankment, while a few feet on either side was dry and hard ground. The tracks followed neither railroad track nor street, but ran across a piece of ground from which the surface had been removed, and which, on account of a recent rain, was soft, with little pools of water scattered through it. Some of the parties who had discovered and traced these tracks observed that one of the shoes of appellant had the marked peculiarity heretofore spoken of. Later in the day his shoes were taken, compared with these tracks, and it was found that the shoes fit the tracks precisely. A shirt was found hanging behind a door in the appellant's house; it was damp, and had plainly visible the butt of a gun impressed on the left breast, as if it had been held in the act of shooting. The gun used at the time of the shooting was a muzzle-loading one, and paper had been used for wadding, and small portions of it had adhered to the body and were found scattered through the room where the body of the deceased was found. Several pieces of the wadding were collected and found to be a portion of a newspaper called the Wichita Eagle. On the day of the killing a small roll of cotton batting, around which was wrapped a Wichita Eagle of a date a year prior, was found in the house of the appellant. A portion of this newspaper had been torn away, and in smoothing and straightening these parts of the wadding found in the room of the deceased, it appeared that they were taken from the newspaper around the cotton batting. These are some, if not all, of the most important circumstances that tended to fasten the guilt on the appellant, and are a sufficient statement to afford an easy comprehension of the questions we are required to discuss and determine.

I. The first contention of the appellant that we shall notice arises on this state of facts: The appellant was arrested on the 24th day of July, 1889; his preliminary examination, lasting several days, was concluded on the 9th day of August, and on the 18th day of September the county attorney filed an information against him, charging the appellant with the killing of John W. Hutchinson. On the 2d day of October the appellant waived an arraignment and entered a plea of "not guilty" to said information. On the 8th day of January, 1890, the county attorney, by leave of the court, amended the information by substituting the word James for that of John, a mistake having been made in the information as to the first name of the deceased, it being James instead of John, as stated in the information. The application to be allowed to make this amendment was done in the presence of counsel for the accused, but he was not personally present in court when leave was given and the amendment made. The journal of the court recites that at the time the amendment was allowed the trial court ordered that a copy of the amended information be served on the accused, which was done on the 8th day of January, 1890, at 2:20 o'clock P.M. of said day. On the 10th day of January, 1890, at the hour of 9:30 o'clock A. M., the appellant was arraigned and required to plead to the amended information, this being less than forty-eight hours after the service of the copy. The accused, by his counsel, objected to an arraignment at this hour--9:30 o'clock A. M.--for the reason that forty-eight hours had not elapsed since the service upon him of a certified copy of the amended information. The trial court overruled the objection, and required the accused to plead; this he refused to do, and the court ordered a plea of not guilty to be entered on his behalf. On this state of facts the appellant bases two assignments of error; the first being that it was error to grant the application for leave to amend the information without his personal presence in court; and the second is, that he could not be required to plead until after the forty-eight hours had expired from the time of the service of the certified copy of the amended information; and hence, there is no arraignment and plea to support the verdict and judgment of conviction. Section 72 of the code of criminal procedure permits an amendment to...