Appeal from Circuit Court, Cape Girardeau County; Henry C. Riley, Judge.
Absolom Kinder, having been convicted of murder in the second degree, appeals. Affirmed.
This case comes to this court by appeal from a conviction of murder of the second degree.
The defendant and appellant in this cause was charged by indictment, duly presented by the grand jury in Cape Girardeau county, Mo., with murder of the first degree. The instrument charged to have been used in the commission of the offense was a large club —a piece of a fence rail—four feet long, four inches broad, and two inches thick. There is no complaint by counsel for appellant urged against the indictment; it is in harmony with the approved forms, hence no necessity for reproducing it here. There was a trial upon this indictment, defendant was found guilty of murder in the second degree, and his punishment assessed at imprisonment in the penitentiary for a term of 10 years.
The record in this case indicates that there were only three persons present at this difficulty —the defendant, the deceased, and one Luther Eakins. As to what occurred at the time and place of the killing, two witnesses testify, Luther Eakins for the state, and the defendant for himself. It is apparent from the record before us that the relations between the defendant and the deceased were not of the most cordial nature, notwithstanding they were cousins. We can more fully appreciate the main facts upon which this case was submitted to the jury by reproducing the statements of the only two living witnesses present at the difficulty.
Witness Luther Eakins testified as follows: "Q. Now, you may tell the jury if there was any trouble between Arthur Kinder and the defendant. You may tell them what it was, how it came up. A. Well, sir, we (me and Arthur Kinder) had hauled off a lot of wheat that morning—Friday morning—and we went by his lower farm to get a load of pumpkins, and started back, and in there by George Gross' in the Schlueter lane we met Ab. Kinder. Well, sir, he drove to the side of the road and stopped. When Arthur came up he spoke to Ab. He says, `Hi, Ab.,' and Ab. says, `Kiss my ____.' Well, what Arthur said I didn't understand much. Ab. then commenced. Ab., he reached in his pocket and got his knife, and jumped out of his wagon and run around to Arthur's front wheel, went clear around his team to his right front wheel, and he says, `Now, God damn you, if you want anything out of me, just get out.' Arthur says, `Put up your knife in your pocket, Ab.; I will fight you a fair fight.' He says, `I will put my knife in my pocket when I get God damned good and ready.' Then he put his knife in his pocket and picked up a two-foot piece of rail, about two feet long. He says, `You have been running about with your God-damned lies long enough,' he says, `you told it about that I killed myself.' Arthur says, `I didn't do any such a thing; I can face the one that said that.' Ab. says, `You told it.' Arthur asked him who it was; he told him who it was; it was one of the Rhodes; I didn't understand the first name. Then he throwed that club down, and he picked up this here one that he hit him with, about 5 feet long, and Arthur says, `I know what is the matter with you, Ab.,' he says, `you are mad because you thought I helped George Kinder beat you out of that girl.' He says, `You did, God damn you.' Arthur said he never done any such a thing. He says, `You did,' he says, `God damn you, I will knock you out of there directly;' and Arthur he jumped, and when he hit the ground he kind of made a bow forward, and Ab. struck him on the back of the head with that piece of rail and knocked him to his hands and knees, and Arthur was trying to get up, crawling forward, and he hit him again. He crawled about a yard after the first time, and tried to get up, and Ab. struck him in the face; then he fell on his belly on the ground, and his face was in the mud and dirt."
Injuries were inflicted upon the deceased by those blows, from which injuries he died the following or next succeeding day.
Upon cross-examination, he testified partly as follows: "Q. When he jumped out, you saw the defendant standing facing— A. Standing facing him? Q. Facing the wagon? A. Yes, sir. Q. Facing the wagon? A. Facing the wagon and Arthur too. Q. In what direction did Arthur jump? A. In what direction did he jump? Q. Yes, sir. A. I could not tell you. Q. Did he jump towards the defendant? A. Yes, sir. Q. With his hands up? A. I never noticed whether his hands were up or not."
Defendant's version of this difficulty is as follows: "Q. What relation, if any, was Arthur Kinder to you? A. Second cousin, I believe. Q. Second cousin? A. Yes, sir. Q. Now, state to the jury all about the difficulty between you and him on October 16th last. Just turn to the jury and tell them all about it; how it came up, and all about it. A. Well, we met there in the Schlueter lane Friday, October 16th; it is called Schlueter lane; I think that is what they call it. Friday, October 16th, we met there. I drove out to the side of the road there. We both met there and stopped. Q. How were you traveling? A. In a wagon. Q. How was he traveling? A. He was in a wagon. Q. In what direction were you going? A. I was going east and he was going west. Q. Well, go on. A. He drove up, and stopped and spoke to me. I didn't speak to him in the way he expected me to speak. When I spoke that he dared me out. Q. State what he said to you. A. He dared me out. Q. At that time where were you? A. In my wagon. Q. In the wagon? A. Yes, sir. Q. Where was he? A. He was in his wagon then. Q. He was in the wagon? A. Yes, sir. Q. Who stopped first, you or he? A. Both stopped something at the same time. Q. He dared you out— Go on. A. I didn't get out; commenced wrapping up his lines; they got out; he dared me out three times. Who got out first? A. Arthur did. Q. Arthur got out first? A. Yes, sir. Q. Go on. A. He dared me out three times, twice after he got out, and once before he got out of his wagon. He stepped out of his wagon; his left foot was yet on the hub of the wagon, holding with his left hand on the sideboard, his right hand in his pocket. He dared me out the third time. I told him if he wanted me out so bad I could get out. I did so. When I got out, as I got out of the wagon I took my knife out. Q. What kind of a knife did you have? A. Common pocketknife. Q. You took it out? A. Yes, sir. Q. Go on. A. When I got out I took my knife out; when I got out I opened it; he asked me—told me— to put my knife in my pocket. I did so. I picked up a piece of rail then; he asked what I was going to do with it; I told him use it on him if he come at me. He told me to lay it down and fight me a fair fight; I told him I didn't propose to fight two men a fair fight. I put the rail down—that piece —after he told me. There was another lying to the side of me; I picked that up. He asked what I was going to do with that; I told him I was going to use it on him if he come at me. Q. Is that the piece you used there? A. I could not state. I never looked at the rail. Q. Where was the piece of rail you picked up—the second piece? A. Lying in the north side of the fence to the left side. Q. Go on. A. I picked that up. By the time I got that and straightened up he threw his arms up that way, above his head, bowed his head, and come at me. I was standing at the head of his team; he was back to his wagon, with his left foot on the hub of the wagon and his other foot on the ground, and he come at me then with his arms up that way. Q. How many steps did he come towards you? A. I could not tell the steps; to the best of my knowledge it was something like twelve feet. Q. State how he came. A. He came in this position (indicating), with his head down that way, and his hands up over. Q. Did he come rapidly or not? A. Yes, sir; he came pretty peart. Q. What then occurred? A. When he got in reaching distance of me I hit him. Q. How many times did you strike him? A. I struck him three times. Q. Three times? A. Yes, sir. Q. What became of him then? A. I only knocked him to his knees the first time; he got up and come at me again; I struck him and knocked him down that time. Q. What became of him then? A. He yet come at me. Q. Well, after you struck him the third time, what did he do? What became of him then? A. He fell to the ground then. Q. Did you strike him any more then? A. No, sir; I did not. Q. What did you do then? A. I didn't do anything more. Q. What did you do with your stick? A. I dropped it down. Q. And where did you go then? A. I got back by the side of my wagon. By that time Luther Eakins came up there with a fence rail and told me if I moved he would knock my God-damned brains out. He gave me a fearful cursing. Q. Luther Eakins? A. Yes, sir. Q....
