State v. Bowen

• Decision Date: 07 March 1925
• Docket Number: 25,482
• Citation: 234 P. 46,118 Kan. 31
• Parties: THE STATE OF KANSAS, Appellee, v. CLINT BOWEN, Appellant
• Court: Kansas Supreme Court

234 P. 46

118 Kan. 31

THE STATE OF KANSAS, Appellee, v. CLINT BOWEN, Appellant

No. 25,482

Supreme Court of Kansas

March 7, 1925

Decided January, 1925.

Appeal from Reno district court; WILLIAM G. FAIRCHILD, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

HOMICIDE--Assault With Intent to Kill--Erroneous Instructions. In an action charging the defendant with assault with intent to kill, the proceedings considered, and held, the instructions were sufficiently erroneous and prejudicial to require the granting of a new trial.

C. E Branine, H. R. Branine, and W. D. Harrison, all of Hutchinson, for the appellant.

Charles B. Griffith, attorney-general, Frank C. Baldwin, assistant attorney-general, and H. F. Brown, county attorney, for the appellee.

Hopkins, J. Marshall, J., dissenting.

OPINION

HOPKINS, J.:

The defendant appeals from a conviction on a charge of assault with intent to kill.

The facts were substantially as follows: On the night of August 18, 1923, Ed Cunningham, a police officer of the city of Hutchinson, was dangerously wounded by the defendant in the yard of one Mrs. Lucile Dixon. The defendant lived with his family about two blocks north of the Dixon place. His story was that, about 11:30 o'clock on the night in question, when downtown, he was given some medicine by a physician to take to Mrs. Dixon; that Mrs. Dixon lived alone with her nine-year-old boy; that she had been sick for several days; that he (defendant) took the medicine to her; that shortly after his arrival at her house three other men came; that later two Smith boys came in a Ford car; that Mrs. Dixon being sick, the defendant answered their knock at the door; that they asked if they could get some whisky; that he told them there was no whisky there, but that he knew a place where they could perhaps get some. One of the Smiths remained while the defendant went with the other some blocks away in the Ford; that he (defendant) returned to the house alone and almost immediately thereafter told Mrs. Dixon that someone had been shadowing him; that he was going out to see who was prowling around and what they wanted; that he had his pistol with him and went out of the door and advanced but a few feet when the shooting began. The time was about midnight, the night very dark.

It appears that the city officers suspected that liquor was being handled from the Dixon place, and about 12 o'clock on the night in question Ed Cunningham, in company with another officer and the "Smith boys," who were acting as "spotters" working for the city, went to the Dixon place. Cunningham was dressed in plain clothes. They had a search warrant for the place, but no warrant for the defendant. When the defendant had advanced a few steps from the house into the darkness, Cunningham, who had been secreted, threw a flashlight into the defendant's face and commanded him to throw up his hands. Instead of doing so, the defendant began to shoot, as also did Cunningham. Cunningham was severely wounded on the side of the face and head. There was testimony supporting the state's contention that the defendant, when he left the house and went out into the darkness, did so for the purpose of "getting" the police officer or officers.

The defendant's contention is that, under the conditions and circumstances surrounding him at the time of the shooting, he was acting in self-defense and shot to protect himself against what appeared to be a hold-up or an unlawful and dangerous assault upon him. He complains, principally, of the court's instructions. Among other instructions requested by the defendant and refused by the court, was one to the effect that a police officer or sheriff has no right or authority to arrest a person for misdemeanor without a warrant unless the offense is committed on view. Section 13-623 of the Revised Statutes, among other things, provides: "The chief or any other policeman shall at all times have power to make or order an arrest upon view of any offense being committed with or without process, for any offense," etc.

It is contended that instructions 20 and 21, given by the court, sufficiently and properly stated the defendant's contention. We are of the opinion they did not do so. They read:

"20. The jury are instructed that the defendant claims that whatever attack he made upon officer Ed Cunningham was made in self-defense, and you are instructed that the plea of self-defense is not available to the defendant in this case if you find, from the evidence, that Ed Cunningham was a police officer of the city of Hutchinson and at the time of the alleged assault was engaged in the line of his duty as such officer, provided you further find that the defendant knew, or should have known, or had knowledge or reasonable cause to believe at the time that said Cunningham was such police officer. A police officer of a city does not necessarily have to have a warrant to protect himself against an assault from a party that he is arresting or attempting to arrest. It is sufficient if the officer, acting in good faith, has reasonable cause to believe that the party he is arresting is or has been...