State v. Burton

• Decision Date: 09 November 1901
• Docket Number: 12,685
• Citation: 63 Kan. 602,66 P. 633
• Parties: THE STATE OF KANSAS v. ROBERT HAWTHORN BURTON
• Court: Kansas Supreme Court

66 P. 633

63 Kan. 602

THE STATE OF KANSAS v. ROBERT HAWTHORN BURTON

No. 12,685

Supreme Court of Kansas

November 9, 1901

Decided July, 1901.

Appeal from Marion district court; O. L. MOORE, judge.

STATEMENT.

APPELLANT was convicted of murder in the first degree. At the trial he justified on the ground of self-defense.

The appellant, Burton, went to Marion county in the spring of 1900, to work at his trade as a painter. He was an unmarried man, and boarded at Drake's restaurant, in the city of Marion. He secured work in the country, about ten miles east of that town, at house-painting for farmers in the vicinity. He painted the dwelling-house of Charles Doty, and while doing this work he boarded and lodged at the Doty house. The family consisted of Charles Doty and wife and their daughter Jessie, aged about thirty years. The daughter was engaged to marry the deceased, Fred. Hoffman.

On Saturday night, November 17, 1900, in the city of Marion Hoffman approached appellant, called him aside, and charged him with making various statements to Jessie Doty to the effect that his (Hoffman's) intentions toward her were not honorable. Appellant denied having made such statements. Hoffman said Jessie Doty was his informant, and asked Burton if he meant to say that Jessie Doty was a liar. Appellant insisted in his denial. He was then asked by Hoffman if he would make this denial in the presence of Jessie Doty. He said he would. According to the testimony of the appellant Hoffman informed the latter that if he denied making the statements in the presence of Jessie Doty there would be a corpse and a funeral procession, providing any one in Marion would bury him. Hoffman offered to bet appellant forty dollars that he would not deny having made the statement in the presence of Jessie Doty on the Monday following. Hoffman asked appellant where he would be on the following Monday and was told that he would be in Marion, at Drake's restaurant. Appellant saw Jessie Doty on the next day Sunday. She testified that he said: "We will meet in Marion Monday to settle this. You won't meet us there, will you? I am not afraid of what he (Hoffman) is going to do to me. I am only telling you from the respect I have for your family. Take a stranger's advice and not go to Marion, for you may witness something you will never forget."

Charles Doty testified that Burton told him he had fallen into trouble with Fred. Hoffman and was going to have a settlement on Monday; that Hoffman called him out to settle a certain question, and told him he would make a corpse out of him if he denied it to his (Doty's) daughter. Burton said he would give him that privilege if Hoffman was quicker than he was; that the question of who would be a corpse depended on who was the quicker.

Appellant stayed in the country over Sunday and came to Marion on Monday morning with Henry Doty on a load of oats, and brought with him a double-barreled shot-gun he had taken from the house of Charles Doty, sr. He also had a revolver on his person. On the way to town he wrote his sister's address and gave it to Henry Doty, who was driving the wagon, and told the latter that if he was killed to hand it to Drake and have him telegraph to his sister. On reaching Marion, about noon, appellant went to a gunsmith's shop and left the revolver to be repaired. He then took the shot-gun to Drake's restaurant and laid it under the table. Jessie Doty did not come to Marion that day. About four o'clock in the afternoon Hoffman entered the door of the restaurant and immediately the appellant drew the shot-gun and fired, at a distance of about eighteen feet, the charge taking effect in the head of Hoffman, causing death within a short time. The appellant testified that when Hoffman entered the restaurant he applied to appellant a vile name, and made a motion of the right hand as though to draw a revolver.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MURDER -- Competent Testimony. It is competent, in a trial for murder, for the state to show that the accused, who was a single man, endeavored to induce a woman, to whom the deceased was engaged to be married, to break the engagement. Such conduct is some evidence that the deceased was an obstacle in the way of the desire of the accused to marry the woman, and goes to the question of motive.

2. MURDER -- Instruction Construed. In a criminal case, an objection was sustained to a question after it had been answered by the witness. The court instructed the jury that only such evidence as had been admitted and permitted to stand should be considered. Held, that the answer will be treated as having been stricken out.

3. MURDER -- Character and Reputation -- Exception to Rule. Information conveyed before the killing to a party on trial for murder, who justifies on the ground of self-defense, that the deceased was a violent and turbulent man and accustomed to go about armed, is admissible, whether the informant gained his knowledge from general reputation of the deceased or from personal observation of his specific acts. The rule that bad character in the respect mentioned can be established only by general reputation of the deceased in the community has no application to the admission of such testimony. It is competent for the purpose of determining the state of mind of the accused at the time of the homicide, and whether he was induced to believe, in good faith, that he was in imminent danger of death or great bodily harm at the hands of the person killed.

4. MURDER -- Threats by Deceased. It is competent for a defendant on trial for murder to prove threats by the deceased against him, when the former justifies the homicide on the ground of self-defense.

R. L. King, county attorney, for The State.

Keller & Dean, for appellant.

SMITH J. JOHNSTON, GREENE, ELLIS, JJ., concurring.

OPINION

SMITH, J.:

In justification of the homicide the appellant relied wholly on the necessity for self-defense. The state was permitted to show at the trial that Jessie Doty was engaged to be married to Hoffman, and that appellant knew it; that the latter sought her company and invited her to attend certain entertainments with him, and that he told her that Hoffman did not intend to marry her but would deceive her. This testimony was admitted on the theory that Hoffman was an obstacle in the way of the consummation of appellant's desire to marry Miss Doty, which fact furnished a motive for the killing. The objection made by appellant to this testimony is an attack on its weight rather than its competency. The conduct of the appellant towards Miss Doty in inviting her to accompany him to places of public amusement, and, failing in this, his attempt to prejudice her against Hoffman, were circumstances proper to go to the jury to aid in the discovery of a motive for the homicide. The testimony was not strong in the direction mentioned, but we cannot say that it was inadmissible.

The appellant took the stand as a witness in his own behalf, and testified that on the Saturday before the homicide, in a conversation with Hoffman, the latter said: "If you will stand up before Jessie Doty's face and tell us you didn't tell her that, there will be a corpse and a funeral procession, if you can get anybody to bury you here in Marion."

Further along the accused testified that when he fired the fatal shot he thought his life was in danger; that when Hoffman entered the restaurant he made a motion of his right hand as if to draw a revolver; that he put all the circumstances that had happened together and couldn't see how he could avoid taking Hoffman's life; that he considered and weighed the conversations held between them and came to the conclusion...