State v. Hewes

• Citation: 60 Kan. 765,57 P. 959
• Decision Date: 08 July 1899
• Docket Number: 11336
• Parties: THE STATE OF KANSAS v. ALLIE HEWES
• Court: United States State Supreme Court of Kansas

57 P. 959

60 Kan. 765

THE STATE OF KANSAS v. ALLIE HEWES

No. 11336

Supreme Court of Kansas

July 8, 1899

Decided July, 1899.

Appeal from Kingman district court; G. W. MCKAY, judge.

Judgment reversed and cause remanded for new trial.

A. A Godard, attorney-general, J. Q. Jenkins, county attorney, and John E. Lydecker, for The State.

Milton Brown, and C. W. Fairchild, for the appellant.

OPINION

JOHNSTON, J.:

In an information filed by the state against Allie Hewes, he was charged with the murder of Robert Bomar by hitting him with a club, and by shooting him, the said Robert Bomar, with a certain pistol commonly called a revolver, then and there loaded with powder and leaden bullets, which said pistol so as aforesaid loaded with powder, leaden bullets and caps he, the said Allie Hewes, then and there in his hands had and held, contrary to the statute in such cases made and provided." The testimony at the trial showed beyond dispute that the defendant shot Bomar twice, that he did not assault or hit him with a club, and that the death of Bomar resulted from the shooting. The jury found the defendant guilty of manslaughter in the third degree, and, although he was less than sixteen years of age, he was sentenced to confinement at hard labor in the penitentiary for a period of one year.

The first complaint is that the information is so indefinite and uncertain that it does not notify the defendant of the precise offense charged against him. As will be observed, the charge is that the defendant assaulted Bomar with a club and also with a pistol, and it is argued that it is bad for duplicity, and uncertainty because it does not particularly state whether, Bomar's death resulted from clubbing or shooting. As the offense charged may be committed by both means, and as several acts connected with and forming part of the general offense may be stated in a single count, the objection of the defendant is not good. It has already been held that "where a murder may have been committed by different means, and it is doubtful which was employed, its commission by all may be charged in one count of the information, and proof of any one will sustain the allegation, but the means so charged in the same count of the information must not be repugnant." (The State v. O'Neil, 51 Kan. 651, 33 P. 287.)

The defendant filed a plea in abatement alleging that he had not had a preliminary examination upon the offense charged in the information, and that he had not waived such examination. A jury was demanded to try this plea and error is predicated upon refusal of the demand. It appears, however, that the plea itself was fatally defective. Informations may be filed against fugitives from justice without a preliminary examination, and there was nothing in the plea in question to show that the defendant was not a fugitive from justice when the information was filed. "Such pleas must be certain to every intent, and leave nothing to be drawn by inference. They must anticipate and include all such supposable matter as would, if alleged by the opposite party, defeat the plea." (1 Encycl. Pl. & Pr. 24.)

A great number of objections are made to rulings upon the testimony. Many of these objections are without merit, and some of the rulings, although erroneous, are not so prejudicial in character as to furnish grounds for a reversal. Objections are made, however, which are so serious in character that they cannot be overlooked. The mother of the deceased was permitted to testify that one of the Hewes children had told her that Allie Hewes, the defendant, said "that the one that shot the dog he would shoot them." The trouble between the Bomar and Hewes families resulted from the shooting of a dog by Robert Bomar on the day that he was killed by Allie Hewes. The Hewes children went to Bomar's to obtain a pail of water and the dog accompanied them. While there Bomar shot and killed the...