State v. Child

• Decision Date: 05 January 1889
• Parties: THE STATE OF KANSAS v. HAROLD CHILD et al
• Court: Kansas Supreme Court

20 P. 275

40 Kan. 482

THE STATE OF KANSAS v. HAROLD CHILD et al

Supreme Court of Kansas

January 5, 1889

Appeal from Chautauqua District Court.

PROSECUTION for a felonious assault. At the June term, 1888, the defendants, Child and Bowman, were convicted and sentenced to the penitentiary--the former for three years, and the latter for five years. They appeal. The opinion contains a sufficient statement of the case.

Judgment reversed and case remanded.

J Milton, and J. V. Beckman, for appellants.

John W Shartel, county attorney, for The State.

SIMPSON C. All the Justices concurring.

OPINION

SIMPSON, C.:

This is a criminal appeal from Chautauqua county. The defendants, Harold Child and Lee Bowman, were on the 28th day of June, 1888, convicted in the district court of felonious assault, and sentenced to the penitentiary for the periods of three and five years respectively. The indictment on which the defendants were tried, omitting the caption and introduction, is in the following words:

. . . "do present that one Harold Child, John Child, and Lee Bowman, on the 18th day of November, in the year of' our Lord one thousand eight hundred and eighty-seven, in said county of Chautauqua and state of Kansas, in and upon Willie Watson, then and there being, did, on purpose and of malice aforethought, unlawfully and feloniously assault him, the said Willie Watson, and did then and there with, to wit, two certain revolving pistols, shoot at him, the said Willie Watson, and did then and there, on purpose and of malice aforethought, unlawfully and feloniously beat and wound him, the said Willie Watson, upon the head and body of him, the said Willie Watson, with a certain revolving pistol held in the hands of them, the said Harold Child, John Child, and Lee Bowman, the said pistol being then and there a deadly weapon, and by means of such blows, purposely and of malice aforethought, unlawfully and feloniously struck upon the head and body of him, the said Willie Watson, the said Harold Child, John Child and Lee Bowman did unlawfully and feloniously greatly injure in body and wound him, the said Willie Watson; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Kansas."

The alleged errors complained of by the defendants are substantially as follows: The defendants complain of that portion of the instruction of the court upon the question of alibi which reads as follows:

"The defendants in this case, for a defense to this action, rely principally upon what is commonly known and called an 'alibi.' An 'alibi' in law simply means that the defendant was not there; or, to state it more definitely a defendant who sets up an 'alibi' shows such a state of facts surrounding his whereabouts at that particular time as would make it practically improbable or impossible for him to have committed the offense charged; and these defendants rely in this case principally upon an 'alibi'; they claim that at the time and place when and where this offense was committed, they were at the same time at so great a distance away from this particular place as to make it improbable or impossible for them to have committed this offense.

"As a matter of law, whenever a defendant relies on an alibi' for his defense, the law casts upon him the burden of showing by a preponderance of the evidence that the 'alibi' is true; in other words, in this case, if these defendants have not, by preponderance of the evidence upon that particular branch of this case, satisfied you that their 'alibi' is made out, then and in that event you will be justified in finding against them, as far as the...