State v. Earnest

• Decision Date: 09 November 1895
• Docket Number: 10374
• Citation: 42 P. 359,56 Kan. 31
• Parties: THE STATE OF KANSAS v. FRANK J. EARNEST
• Court: Kansas Supreme Court

42 P. 359

56 Kan. 31

THE STATE OF KANSAS v. FRANK J. EARNEST

No. 10374

Supreme Court of Kansas

November 9, 1895

Decided July, 1895.

Appeal from Clark District Court.

FRANK J. EARNEST, convicted of murder in the first degree, appeals. All the material facts are stated in the opinion herein filed November 9, 1895.

Judgment affirmed.

H. J Bone, and Ben. E. Page, for appellant; Waggener, Horton &amp Orr, of counsel.

F. B. Dawes, attorney general, and J. M. Grasham, county attorney, for The State.

ALLEN J. MARTIN, C. J., concurring. JOHNSTON, J., dissenting.

OPINION

ALLEN, J.:

The defendant was charged with and convicted of the premeditated murder of Sidney J. Jackman, in Clark county, on the 29th of January, 1895. He testified in his own behalf, and was examined and cross-examined at great length. His statement of the circumstances immediately connected with the tragedy is in substance as follows: That he came up town in Ashland, where both he and the deceased resided, about 10 o'clock in the morning; that he saw the deceased in front of the butcher shop, which he had formerly owned, and which was then occupied by Charles Foster, and that Jackman spoke to him, saying, that "Lyons and the other fellows are going to be in this evening"; that Lyons was a cattle inspector of the Texas association; that they were going to try to take a steer away from him, and that he would not give him up--would kill them first; that they went into the butcher shop and drank some whisky from a bottle Jackman had in his pocket. There were two rooms to the butcher shop, the front room in which meat was kept, and a small back room in which there was a stove with a fire in it, used as a kind of loafing room. In the southwest corner there was a writing desk, and north of it a trunk. Some other parties came in while they were in this small back room, including Tom Jackman, a brother of the deceased, who also produced a four-ounce bottle of whisky, which they drank. All the others then went out except the defendant, the deceased, and Foster. Jackman proposed that they should all chip in and get some more whisky. Jackman gave 10 cents and the defendant a quarter to Foster to buy whisky. When Foster went out to get the whisky, Jackman was sitting on the west side of the stove and a little to the south of it. The defendant was sitting on the north side of the room. The defendant states:

"When Mr. Foster went through the middle door, he shut the door, and I heard the money-drawer. Sid. said, 'Who is that?' and I raised up off my seat and looked through the window in the door.

"Ques. There is a window in the door between the back room and front room? Ans. Yes; a little one.

"Q. Just one pane of glass? A. Yes, sir. I told him it was Foster. . . . I turned around to the water bucket that sat on the counter next to the east side of the back room and took a drink.

"Q. What then? A. I turned back to the stove.

"Q. How? A. Turned around and went back of the stove.

"Q. Facing it? A. Yes, sir.

"Q. How near were you to the stove? A. I walked up and just put my foot up on the 2x4 as it is around the stove.

"Q. Which foot, do you remember? A. My right foot.

"Q. Where was Sid. at that time? A. He was sitting across at the southwest side of the room.

"Q. What, if anything, did you so say at that time? A. I said, 'Sid. you are trying to break up my family, and you said that if I interfered that you would kill me, now what are you going to do about it?'

"Q. What, if anything, did he say? A. He ris this way [indicating with his hand] and said 'God damn you, I will kill you,' and I jerked the pistol out of my pocket and shot, and he jerked back this way as I shot, and fell, looked to me as though he hit the chair and went over this way against the trunk, and kind of doubled back and was in the corner.

"Q. Doubled back between the trunk and stove? A. Yes, sir.

"Q. I will ask you whether or not he struck the chair in falling? A. I think he did. That is the way it looked to me.

"Q. You saw when he rose, what, if anything, did he have in his hand? A. It looked like a knife when I saw it, after his hand got up. . . .

"Q. How did you happen to shoot the second shot? A. Because I thought he was getting his gun, then when he jerked his hand down-- just as he threw his hand down, I shot again."

The defendant then went out through the front room of the butcher shop to the street. Foster testifies that having heard the shots he came back and met the defendant just inside the outside door of the shop; that the defendant then said to him "Do n't go in. I had to do it. I was too quick for him or he would have got me"; that when he left the back room Jackman was sitting on a common stool chair southwest of the stove, his left foot on the iron ash-box forming the lower part of the stove, with his right foot crossed over it, leaning back; that he had a pair of pants lying across his lap rolled up in a roll; was whittling a stick with a small penknife; that when he came in he found Jackman lying with his face down, west and a little north of the stove, his left hand under him, the pants between his left arm and his body, his right hand lying at his side, and the knife on the floor near by; that his left foot was still on the box part of the stove a little farther to the north, and his right foot was thrown over to the north side of the stove. Two ball holes were found in the body, one to the right and the other to the left of the breast-bone, and two spots were found on the back, apparently caused by bullets. The spots on the back were about five or six inches lower than the ball holes in the breast. The doctors testified that the ball must have passed through the heart, and that death was instantaneous. The theory of the prosecution was that Jackman had been giving information to the sheriff of cattle-stealing operations with which the defendant was connected, and that the defendant sought this occasion to kill him and get him out of his way. The claim of the defendant was that Jackman was intimate with his wife, and, when the subject was mentioned by Earnest, attacked him in the manner detailed by the defendant on the witness-stand, and that he shot him in self-defense.

The principal claim of error is in giving the sixth instruction, which is as follows:

"In this case the killing with a deadly weapon is admitted by the defendant. The presumption therefore is that such killing was done with malice. This presumption stands until it is rebutted by evidence showing that the killing either resulted by passion produced by sufficient provocation, or by evidence that the killing took place under such circumstances that excused the defendant in taking the life of the deceased."

Many authorities are cited by counsel for the state supporting the instruction as given, and some even go much farther. The supreme court of Massachusetts, in the case of Commonwealth v. York, 9 Metc. 93, in an elaborate opinion affirmed an instruction as follows:

"The rule of law is, when the fact of killing is proved to have been committed by the defendant, and nothing further is shown, the presumption of law is that it is malicious and an act of murder. It follows, therefore, that in such cases the proof of matter of excuse or extenuation lies on the accused, and this may appear either from evidence adduced by the prosecution or evidence offered by the defendant."

The supreme court of Ohio, in the case of Davis v. The State, 25 Ohio St. 369, said:

"The charge of the court, that malice is to be intended from the fact of killing, and that circumstances of justification or extenuation, not disclosed by the evidence adduced against him, are to be made out by the accused, is in our opinion unexceptionable, and the well-settled law of such cases."

In 2 Bishop on Criminal Law, § 680, it is said:

"As general doctrine, subject, we shall see, to some qualifications, the malice of murder is conclusively inferred from the unlawful use of a deadly weapon resulting in death."

In the case of The State v. Mahn, 25 Kan. 182, it was held not error to refuse the following instruction:

"The jury are further instructed that the fact alone, by itself, that the deceased was killed by defendant, is not sufficient to establish a malicious intent."

It was said in the opinion:

"In many cases the above instruction would be good law, but in the present case it would be misleading and erroneous. In the present case, the fact of killing was not the only fact that tended to show a malicious intent on the part of the defendant."

Notwithstanding the numerous authorities affirming the proposition of law contained in the instruction given in this case, we think it subject to criticism, and that the jury should never be told that malice or any other element of crime is presumed from any one fact, or partial group of facts in the case. Nor should they be told that a presumption arising from one act stands until rebutted by evidence. A criminal case is not to be severed into parts by the court, so that the prosecution having established by evidence certain facts, is relieved from the burden of showing other essential elements of criminality. The true rule, as heretofore established by this court, in cases like the one under consideration, is that the burden of proving the guilt of the defendant and every element of crime rests on the state throughout every stage of the trial, and that all the evidence introduced on both sides is to be considered by the jury in arriving at a verdict of guilty, or not guilty. The presumption of malice arising from the use of a deadly weapon with deadly effect is not properly to be...