State v. Keleher

• Decision Date: 10 November 1906
• Citation: 87 P. 738,74 Kan. 631
• Parties: STATE v. KELEHER.
• Court: Kansas Supreme Court

87 P. 738

74 Kan. 631

STATE v. KELEHER.

Supreme Court of Kansas

November 10, 1906

Rehearing Denied Dec. 8, 1906.

Syllabus

To render one who is not present and does not aid or assist in a murder guilty thereof by reason of a former conspiracy with the slayer, it must appear that the murder was within the contemplation of the conspiracy, or was the natural and probable outcome thereof.

[Ed Note.-For cases in point, see Cent. Dig. vol. 26, Homicide, §§ 48-51.]

A conspiracy to steal money from a barn, where it was supposed to be hidden, is not such a conspiracy as would naturally and probably result in the murder of the owner of the money at a place entirely remote from the barn, and under circumstances in no way connected with obtaining money from the barn.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 26, Homicide, §§ 48-51; vol. 14, Criminal Law, §§ 1082-1098.]

In such a case, and in the absence of evidence showing any connection between the conspiracy and the murder, except that the murder was for the purpose, on the part of the slayer, to obtain the money, it is error to instruct the jury that they may find the absent conspirator guilty of the murder if they find the murder was the natural and probable outcome of the conspiracy.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 26, Homicide, §§ 48-51; vol. 14, Criminal Law, §§ 1082-1098.]

Section 5652, Gen. St. 1901, extends the provision of the Civil Code (Gen. St. 1901, § 4754) relating to new trials on the ground of newly discovered evidence to criminal procedure, although a new trial on this ground is not authorized by the express provisions of section 5713, providing the grounds upon which a new trial in criminal cases may be granted.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 2306-2317.]

When an application for a new trial in a criminal case is made on this ground, and it conclusively appears that the new evidence is in fact newly discovered, that it is material for the party applying, and could not with reasonable diligence have been discovered and produced on the trial, and the effect of the evidence is doubtful or impossible to determine, a new trial should be granted.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 2318-2323.]

Appeal from District Court, Graham County; Chas. W. Smith, Judge.

Charles Keleher was convicted of murder, and appeals. Reversed.

M. A. Chambers, F. D. Turck, David Ritchie, and G. W. Jones, for appellant.

C. C. Coleman, John S. Dawson, and H. J. Harwi (Garver & Larimer, of counsel), for the State.

OPINION

SMITH, J.

In attacking the proceedings of the court numerous errors are assigned, but the questions raised may all be considered under the following heads: (1) The sufficiency of the information as embracing the charge of murder in the second degree. (2) The sufficiency of the evidence and variance therein. (3) The instructions given and refused. (4) The rulings on motions in arrest of judgment and for a new trial. The charging part of the information in this case reads as follows: "That on or about the 15th day of November, A.D. 1905, in said county of Graham and state of Kansas, one Charles Keleher did then and there unlawfully, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought kill and murder one Charles Wetzel, then and there being, by striking him, the said Charles Wetzel, on the head with a deadly weapon, the same being a singletree, or some other blunt instrument. A better description of said deadly weapon the plaintiff is unable to give. The said deadly weapon he, the said Charles Keleher, then and there in his hands had and held. And so the State of Kansas, plaintiff, says that at the time aforesaid and by the means aforesaid he, the said Charles Keleher, did unlawfully, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought kill and murder Charles Wetzel, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Kansas."

The statute defining murder in the first degree reads as follows: "Every murder which shall be committed by means of poison, or by lying in wait, or by any kind of willfull, deliberate and premeditated murder, or which shall be committed in the perpetration or an attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed guilty of murder in the first degree." The section defining murder in the second degree reads: "Every murder which shall be committed purposely and maliciously but without deliberation and premeditation shall be deemed murder in the second degree." It is contended by appellant that under the statutory definition of murder in the first degree "there are four different kinds of murder provided for. In other words, murder in the first degree may be committed in four different ways: First, by means of poison; second, by lying in wait; third, by any other kind of willful, deliberate, and premeditated killing; fourth, when the killing is committed in the perpetration or attempt to perpetrate some other felony. *** We take it from the reading of this statute that in the first three ways in which murder may be committed as defined by this statute that the willful intent to kill is one of the essential ingredients, and in order to convict a defendant of murder in any one of these three ways the willful, deliberate, and premeditated intent to kill must be alleged and proven. *** Under the fourth provision of this statute, it may not be necessary to prove any intent to kill, and an information might be good and might be sustained by proof which was entirely wanting in either allegation or proof of any intent of the defendant to kill the deceased. *** Under this statute [referring to the statute defining murder in the second degree] the intent or purpose with which the act is done by which the life of the deceased may be destroyed is made an essential ingredient of the offense charged, and in order to convict of murder in the second degree the purpose or intention with which the act that results in the death of the deceased is done must be alleged and proven, and such is the law as declared by this court"-citing State v. Young, 55 Kan. 349, 40 P. 659. The argument is quite ingenious and interesting, but is not consistent with the authorities nor with itself. By implication it makes murder in the second degree a greater crime than the first, second, and "fourth kind" of murder in the first degree, in that it is said under this "fourth" kind an information might be sustained that was wanting in allegation or proof of any intent of the defendant to kill the deceased. So far as the language of the statute is concerned, this might with equal reason be said of murders committed by means of poison or by lying in wait. The language employed in the statute to define murder in the first degree is generations old, and had a well-settled meaning long before it was adopted in this state. It was adopted in the state of Pennsylvania in 1794. The settled meaning is uniformly held to be that, to constitute the first degree of the crime, the murder must be committed willfully, deliberately, and premeditatedly, but it is not necessary to constitute the crime that death should be the willfull, deliberate, and premeditated purpose and object of the act which constitutes the crime. It was said as early as 1813 by Chief Justice Tillman in White v. Commonwealth, 6 Bin. (Pa.) 179, 6 Am. Dec. 443: "In an indictment for murder, it is not necessary so to describe the offense as to show whether it was murder in the first or second degree. It has not been the practice since the passage of this law (which in defining murder in the first degree is identical with our statute, except the words "or other felonies" are omitted) to alter the form of indictment for murder in any respect. *** It seems to be taken for granted that it would not always appear on the face of the indictment of what degree the murder was, because the jury are to ascertain the degree by their verdict." See, also Commonwealth v. Flanagan, 7 Watts & S. (Pa.) 415, decided in 1844. At the common law it was not essential to allege or prove the specific intention to kill if the act from which death ensued was malum in se or done with a design to commit a felony. 2 Whart. Crim. Law, § 997; Bish. Crim. Law, § 694. Our statute defining murder in the first degree is identical with the Missouri statute from which it was probably taken, and the same doctrine is there maintained as in Pennsylvania. State v. Meyers, 99 Mo. 113, 12 S.W. 516; State v. Foster, 136 Mo. 653, 38 S.W. 721. Proof that a homicide was done in the perpetration of a felony is held tantamount to the premeditation and deliberation which otherwise would be necessary to constitute murder in the first degree.

The only essential difference between murder in the first degree and murder in the second degree is that the former is committed after deliberation and premeditation, which elements do not inhere in the lower grade of the crime; but all the elements of murder in the second degree are included in the statutory definition of murder in the first degree. It is inconceivable that a person could premeditate the killing of another and deliberately proceed to consummate the act without purposely and maliciously committing the murder. While the intent to kill or to do the wrongful act which results in the death is an essential element in the second degree of murder, it is not necessary to specifically allege or to prove these elements. They are included in the charge of murder in the first degree. As to the proof, the intent may be inferred from the accomplished fact of the...