State v. Hatch

• Decision Date: 07 November 1896
• Docket Number: 10637
• Citation: 57 Kan. 420,46 P. 708
• Parties: THE STATE OF KANSAS v. BOB HATCH
• Court: Kansas Supreme Court

46 P. 708

57 Kan. 420

THE STATE OF KANSAS v. BOB HATCH

No. 10637

Supreme Court of Kansas

November 7, 1896

Decided July, 1896.

Appeal from Reno District Court Hon. F. L. Martin, Judge.

REVERSED AND REMANDED.

THE defendant was charged with murder in the first degree by shooting and killing Thomas Mullen on December 5, 1895, at Hutchinson, in Reno county. He was convicted of murder in the second degree and sentenced to imprisonment in the penitentiary for the term of 20 years; and he appeals to this court because of alleged errors upon the trial. It was not denied that Hatch shot and killed Mullen at the time and place stated, and the defendant relied only upon the justification of self-defense for acquittal. The evidence tended to show the following facts among others, namely --That Hatch was a colored hotel porter, part of whose business it was to go to the depots on the arrival of passenger trains to solicit people to go to the hotel for which he was employed; that on the afternoon of December 5 he went into a billiard hall where Mullen and Freeman, two colored men, were engaged in playing pool, and some bantering words passed between Hatch and Mullen about playing a game when Mullen threatened to strike Hatch with the butt end of a billiard cue, but Freeman interfered; that Hatch then went outside, Mullen following him, and there they had hot words and Mullen threatened to kill Hatch; that Freeman also became involved in the quarrel, at which Mullen took offense against him; that soon afterward Mullen obtained a shotgun and carried it about the street threatening to kill Hatch and Freeman; that they were advised thereof and they requested the chief of police and a constable to disarm Mullen; that Hatch then endeavored to procure a pistol and made some threats against Mullen; that friends of Mullen after a time prevailed upon him to give up his gun; that about 6 o'clock in the evening Hatch borrowed a pistol from his employer on the statement that he needed it for defense against Mullen, who had threatened his life, and it was necessary for him to go to meet an incoming train; that he went to meet the train, and at the corner of Second and Main streets he called "Hello, Tom!" meaning, as he says, Tom Fife, not seeing Mullen; but this is a fact in dispute; that Mullen came toward him and there were some words of attempted explanation, and Mullen ordered Hatch to take his hands out of his overcoat pockets, as if in fear that Hatch was armed; that Hatch did as requested, but Mullen approaching nearer, and the talk between them continuing thereupon Hatch drew the pistol from his overcoat pocket and began firing at Mullen, who started across the street; that Hatch fired four or five shots, three of them taking effect and one proving fatal, Mullen falling and expiring in the street immediately. Mullen was not armed at the time, but Hatch testified that, before he shot, Mullen was approaching toward and threatening to kill him, and that he made a motion as if reaching for a pistol. Mullen had been under the influence of intoxicating liquors during the afternoon. The defendant complains especially of the following instructions which were given by the Court to the jury:

"24. The right of self-defense does not arise where there is opportunity to restrain the assailant by process of law; and if the jury in this case believe from the evidence, beyond a reasonable doubt, that the defendant had an opportunity to invoke the interposition of the law against any threatened assault by the deceased, and failed to invoke the authority of the law, he is not entitled to the plea of self-defense and it would not be enough for the defendant to call upon the police officers and constables for protection, unless the deceased was present at the...