State v. Evans

• Decision Date: 06 May 1887
• Citation: 13 P. 849,36 Kan. 497
• Parties: THE STATE OF KANSAS v. JAMES M. EVANS
• Court: Kansas Supreme Court

13 P. 849

36 Kan. 497

THE STATE OF KANSAS v. JAMES M. EVANS

Supreme Court of Kansas

May 6, 1887

Appeal from Neosho District Court.

INFORMATION charging that James M. Evans did, on or about the 4th day of August, 1886, in the county of Neosho, in the state of Kansas, on purpose and with malice aforethought, shoot at Scott V. Irwin with a loaded pistol, with intent to maim kill and murder said Irwin. From a conviction and sentence the defendant appeals. The opinion states the facts.

Judgement affirmed.

G. W. McClelland, for appellant.

J. L. Denison, county attorney, for The State.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

The information in substance charged that James M. Evans, in Neosho county, on purpose and with malice aforethought, did shoot at Scott V. Irwin with a loaded pistol, with the felonious intent to maim, kill and murder said Irwin. A trial was had on November 16, 1886, and the jury returned a verdict that the defendant was --

"Guilty of endangering the life of Scott V. Irwin by the act of him, the said defendant, under circumstances which would have constituted manslaughter in the fourth degree if the death of said Irwin had ensued from the act of said defendant."

Upon this verdict, the court sentenced the defendant to confinement in the penitentiary at hard labor for a term of two years; from which conviction and sentence he appeals.

He complains of the charge of the court. The court, in its instructions, told the jury that the information not only charged an assault with intent to kill and murder, but that other offenses, of a lower grade, were included therein, which were defined; and among other directions the court advised the jury, that they might

"Consider the evidence for the purpose of determining whether or not the life of said Irwin was endangered by the act, procurement and culpable negligence of the defendant, or whether, if death had ensued from the alleged act of said defendant toward said Irwin, it would have constituted manslaughter in the fourth degree."

The appellant contends that there was no testimony of culpable negligence upon which to found such an instruction, nor to prove any offense of a lower degree than the one specifically charged in the information. The shooting at the time and place charged is admitted. The testimony for the state tends strongly to show that the appellant was actuated by malice, and shot at Irwin with the intent to kill him. The appellant was riding along the highway, and passed a field in which Irwin, the complaining witness, was plowing. Irwin testifies that appellant stopped his horse when opposite to Irwin and only ninety yards distant, and with a threatening expression drew and discharged a revolver. The witness further says: "I heard the whistling of the ball, and felt the full concussion of it in my face and in my hat-brim." Robert Irwin, a...