State v. Cleary

• Decision Date: 10 November 1888
• Citation: 19 P. 776,40 Kan. 287
• Parties: THE STATE OF KANSAS v. PATRICK CLEARY
• Court: Kansas Supreme Court

19 P. 776

40 Kan. 287

THE STATE OF KANSAS v. PATRICK CLEARY

Supreme Court of Kansas

November 10, 1888

Appeal from Lincoln District Court.

PROSECUTION for murder. From a judgment against him at the February term 1888, the defendant, Patrick Cleary, appeals. The opinion states the material facts.

Reversed and remanded.

J. G Mohler, for appellant.

Ed. F Coad, county attorney, for The State; Garver & Bond, of counsel.

SIMPSON, C. Justice VALENTINE concurred, HORTON, C. J., concurring specially, All the Justices concurring.

OPINION

SIMPSON, C:

This is a criminal appeal from Lincoln county. The appellant, Patrick Cleary, was convicted of murder in the second degree, at the February term, 1888, of the district court of that county. His motions for a new trial and in arrest of judgment were overruled, and he was sentenced to imprisonment in the penitentiary for the term of twenty years; and from this sentence he appeals.

His counsel makes the following assignments of error:

"1. The admission of illegal testimony over his objection.

"2. The rejection of legal and competent testimony offered by him.

"3. The refusal to charge the jury as specially requested.

"4. The misdirection of the jury in a material matter of law.

"5. The preadjudication on the part of the juror Oscar Gorten.

"6. The verdict is not sustained by the evidence."

A general statement of the facts prior to, and at the time of the killing, will greatly aid in the solution of the questions raised. The deceased and the defendant resided in Franklin township, Lincoln county, and both had resided there for many years. They lived less than three-quarters of a mile apart, near Elkhorn creek. There had been bad blood and ill-feeling between them for years, and on the trial it appeared that each had repeatedly made threats against the other. For some days before the killing, both the deceased and the defendant had been feeding cattle for one Slavens, of Kansas City, the defendant having about three hundred head and the deceased about one hundred. The deceased was feeding the cattle in his charge on a field of corn-stalks some three or four miles away from where he lived, and watering them on the land of one Gillespie, through which runs a branch of the creek containing plenty of water. The defendant had secured from the agents of Gillespie at Lincoln Center, the exclusive water-right, and on the evening before the killing had sent a note to the deceased of the following import:

"TOWER SPRINGS, KANSAS, Jan. 2, 1888.

"JESSE TURNER--Dear Sir: You are hereby notified not to trespass on sec. nine where your cattle watered and fed yesterday and to-day, as I have bought the right of grass and water on the place, and need it for my own cattle. I will not have them there, and you will oblige me by keeping them off.

Respectfully yours, PAT. CLEARY."

This note was taken to the house of Turner by one John Deming, a young man aged twenty-seven years, who was working for the defendant at that time, and who had seen Cleary write the note. He testified that when he arrived at Turner's house and knocked at the door, it was locked, and the window was darkened by a coat hanging over it. The door was unlocked by Arthur White, a young man working for the deceased, and he went in. Mr. Turner was not at home, having gone over to a neighbor's, and he left the note with White to be delivered to Turner. He saw on a table in Turner's house, two revolvers; one he described as a cap-and-ball pistol, and the other as a cartridge pistol; and White was loading one with powder. He went back to the defendant's house and told him what he had seen at Turner's, and about the door being locked and the window darkened. The evidence disclosed that, at the time the note was delivered at his house, Turner had gone to the house of one John W. Jaycox, who lived in Ellsworth county, and about three and one-half miles distant from Turner's, to borrow a pistol. He told Jaycox that Cleary had been over to where the boys were herding the cattle, and had made some threats. He further said that he did not think he would have any occasion to use the pistol, but if Cleary pulled a gun on him he wanted to be prepared for him. Turner also said that Pat. Cleary had sent him word that he would shoot him by candle-light. Jaycox let him have the revolver, and he took it home with him. It was what was called a self-cocker, and was loaded. Jaycox and Cleary were not friendly. Turner was at the house of Jaycox about dark, and told Jaycox in response to an inquiry as to where his revolver was, that he had sold it, or traded it off. The morning on which the killing occurred, the defendant Cleary went to the house of a near neighbor, Mills, and borrowed a pistol of him; it was a Colt's navy, ball-and-cap revolver. He had another pistol with him. He said that they had found a den of wolves, and he and the boys were going to kill them--mentioning John Cleary, Fred. Buckner, and George Beggs. He said he had powder and caps, and some lead with which to pound out balls. He stayed at Mills's house probably twenty minutes, and then left in the direction of his own house. This occurred from one-half to three-quarters of an hour before Turner was killed. Turner was killed in the road that runs north and south, immediately west of the defendant's house. This road is bordered by a high hedge that separates it from the land of the defendant. When the coroner, with the jury, reached the place where the homicide occurred, the body of Turner was lying eight or ten feet west of the wagon-track of the road, and about seventy-six feet north of a gate in the hedge in front of the house, and was lying one hundred and fifty-nine feet from the defendant's house; and according to the evidence, at the exact spot where the deceased fell from his horse when he received the fatal shot. The defendant's house was situated about one hundred and fifteen feet east of the hedge in front, and at that point there was a gate in the hedge fifteen and one-half feet wide, and south of this, one hundred and twenty-nine feet, there was a gap in the hedge through which the road runs, it making a bend at that point, passing to the west side of the hedge. About one hundred and fifteen feet southeast of the defendant's house his stable is located, and his corn crib is east of the stable and a little south of it, and nearer to the house than the stable, the exact distance from the house being eighty-one feet. It was two hundred and forty-nine feet from the corn crib to where the body was found by the coroner. These measurements were made by the county surveyor, and proven on the trial. The defendant, after his return from the Mills house, where he had gone to borrow a revolver, melted lead and made bullets for a short time, and then went to his corn crib to throw corn to his cows and young stock. The deceased lived south of the defendant's house about one-half mile; and the record gives no account of his movements that morning until he appeared in the road leading up past the defendant's house. He was seen by Mrs. Mills, some time after Cleary had left their house with the pistol, to ride along the road going north, and where she saw him was about half-way between his house and that of the defendant.

Coming now to the immediate facts connected with the killing, the state rested its case on the statements made by the defendant, and the evidence of John Cleary, the defendant's son, aged seventeen years, who appears to have been the only eye-witness. One of the statements of the defendant was made to a constable of Franklin township, who happened along the road a short time after the killing, and to whom the defendant surrendered and delivered his pistol and the other statement was made before the coroner's jury. The substance of these statements, as well as the evidence of young Cleary on the trial, was that the defendant was at his corn crib feeding his young stock, when the deceased, who was in the road in front of the house, but had passed the gate some distance, called to him to come out; that the defendant passed out through the gate and saw the deceased sitting on his horse facing south. That the deceased said to Cleary, "What are you going to do about that watering-place?" Clearly answered, "I don't propose to let you water there, as I have bought the ground and the privilege of that watering-place, and I need it for my own cattle." The deceased then said that he would water there whether Cleary would let him or not, that Cleary could not keep him from watering there; and then the defendant said, "We will see about that." The deceased then told Cleary that if he came down there he would kill him, and Cleary replied something to that remark, when the deceased pulled a club upon him and said, "God damn you, I will kill you now!" Cleary turned toward the hedge, then turned to the deceased and said, "God damn you, don't you hit me with that club;" that the deceased then laid the club down on the pommel of the saddle, and pulled the mitten off his right hand, and reached for his revolver and pulled that. Cleary drew his pistol about the same time. Cleary stated that the deceased had snapped his pistol at him once, and was in the act of firing, or trying to fire it the second time, when he fired the fatal shot. The ball from the pistol of the defendant struck the deceased in the forehead at a point over and a little to the right of the left eye, and it was found on the back part of the left lobe of the brain, very close to the inside of the skull. It was a good-sized leaden bullet, and went almost horizontally through the brain and head; and the medical evidence was that it would prove fatal almost instantly. Cleary, the defendant, stated before the ...