State v. Kyles

• Decision Date: 19 February 1913
• Citation: 153 S.W. 1047
• Parties: STATE v. KYLES.
• Court: Missouri Supreme Court

153 S.W. 1047

STATE v. KYLES.

Supreme Court of Missouri, Division No. 2.

February 19, 1913.

1. HOMICIDE (§ 282) — EVIDENCE — SUFFICIENCY — DEGREE OF MURDER.

Evidence, on a trial for homicide, held insufficient to show deliberation or premeditation, and hence the court erred in submitting murder in the first degree.

2. HOMICIDE (§ 152) — EVIDENCE — PRESUMPTIONS — DEGREE OF MURDER.

While the deliberation necessary to make an intentional killing with a deadly weapon murder in the first degree may be shown by facts and circumstances, it must be proved in some way, or the law will presume that the crime was murder in the second degree.

3. HOMICIDE (§ 282) — QUESTIONS FOR JURY — DEGREE OF OFFENSE.

Under Rev. St. 1909, § 4450, requiring the jury, under an indictment for murder in the first degree, to inquire as to the degree of the crime, the duty of so inquiring does not devolve upon the jury until some evidence of each of the degrees is offered.

4. CRIMINAL LAW (§ 778) — INSTRUCTIONS — FLIGHT BY ACCUSED.

Where the state's evidence, on a trial for murder, showed that accused was leaving deceased's home, when he was called back by deceased, that the killing then occurred, and accused started in the direction in which he was proceeding before the homicide, that he wandered drunkenly around the city, finally going to his home two blocks and a half from the scene of the homicide, attempted to enter, and, finding he could not get in, started back in the direction of deceased's residence, it did not warrant an instruction that flight raised a presumption of guilt, and that, if accused fled from the scene of the difficulty for the purpose of avoiding arrest and trial, that fact could be taken into consideration in determining his guilt or innocence.

5. CRIMINAL LAW (§ 778) — INSTRUCTIONS — FLIGHT BY ACCUSED.

On a trial under an indictment for murder in the first degree, an instruction that flight raised a presumption of guilt, and that, if accused fled for the purpose of avoiding arrest and trial, that fact might be taken into consideration in determining his guilt or innocence, was improper, even if justified by the evidence, because likely to mislead the jury into believing that the flight raised a presumption of guilt of murder in the first degree.

6. HOMICIDE (§ 300) — INSTRUCTIONS — SELF-DEFENSE.

Where accused testified that deceased attacked him with a knife, and that deceased was stabbed while they were struggling for possession of the knife, the usual directions on self-defense should have been given, since his testimony tended to show that he had reasonable cause to believe, and did believe, his life was in danger; and, if it was to be believed, he was guiltless, whether he struck intentionally, or whether the wound was an incidental result of his efforts at self-protection.

Appeal from Circuit Court, Livingston County; Arch B. Davis, Judge.

Gordon Kyles was convicted of murder in the first degree, and he appeals. Reversed and remanded.

Lewis A. Chapman, of Chillicothe, for appellant. Elliott W. Major, Atty: Gen., and Campbell Cummings, Asst. Atty. Gen., for the State.

BLAIR, C.

From sentence of death imposed by the circuit court of Livingston county, defendant appeals. John Watts, the deceased, and defendant were, and for years had been, intimate friends, and that friendship, according to the evidence for both state and defense, had suffered no previous interruption.

Deceased, his wife, and one Urton lived in a house on Third street, in Chillicothe, and defendant lived some two or three blocks distant. Deceased was a butcher, conducting no establishment of his own, but accepting employment in killing hogs and cattle for others as opportunity offered. Defendant at times engaged in the same business, and he and deceased frequently worked together. On the day of the killing, defendant, Urton, deceased, and the latter's wife were at the Watts home and had been drinking a mixture made of water and alcohol, which deceased procured and his wife prepared for consumption. None of the party seems to have been very much intoxicated, however, if Mrs. Watts is to be believed. During the afternoon, Urton and deceased had a difficulty over some coal Urton had picked up along the railroad and wanted to sell to one Elliott. A struggle or scuffle between the two ensued, but neither was injured; and Urton left the premises. There is evidence deceased was angry. Later a cornknife belonging to Urton was found in the room, but deceased's wife seems not to know when or how it got there, though she admits she removed the weapon after her husband was killed.

After Urton's departure, according to Mrs. Watts' testimony, deceased and defendant engaged in a friendly scuffle, from which they desisted when she suggested they might knock over a lamp or table. Immediately thereafter, she says, defendant left the house, taking with him a small rifle and butcher knife used for killing hogs. Defendant had asked to borrow the knife for use the following day, but deceased had declined to loan it. With these defendant left and went west toward the business part of the city. Deceased went out the back door and around the house, following defendant out upon the sidewalk in front, and called to defendant, who was proceeding westward at some distance, to come back. After being called two or three times, defendant retraced his steps to where deceased stood, at a point some 12 feet west of the front gate to the Watts premises. Deceased's wife, at this juncture, was standing at the front doorway of the house, about 25 feet from her husband and defendant. An electric light almost directly in front of the house enabled her to see what occurred. She says her husband and defendant conversed there, but she heard no angry word, saw no struggle, and does not pretend she saw a blow struck by either. In a few moments defendant turned away and again walked westward, and, after he had proceeded some distance, she says she heard her husband say, "Gordon, come back;" and a moment later she testifies he said, "My God, Gordon stabbed me." Another witness for the state testified he saw defendant walking along the sidewalk about 75 yards west of deceased, and heard the latter call defendant, and saw defendant turn and go back to where deceased was waiting for him. Witness walked on toward town, and soon defendant turned and ran from where deceased was, crossed the street, and caught up with witness, and he then noticed defendant had a rifle in his hand. A gentleman in front of the two attracted defendant's attention, and defendant asked who he was. Witness told defendant "not to shoot that man; that he had nothing to do with their trouble." Defendant went on west, crossed to the south side of the street, and walked on away.

When defendant started away from where he and deceased had stood, the latter "broke out in a cry and began to call him to come back." Witness did not hear what was said between the two, could hear the sound of voices, but could not understand what was said. When defendant left deceased, the witness heard a woman calling for help. Witness saw no struggle, no blows. This witness places Mrs. Watts out on the sidewalk near her husband at the time the latter first called defendant to come back, and says she was urging the former to come in and have no trouble. These two are the only eyewitnesses to anything connected immediately with the killing, and neither pretends to have seen defendant stab deceased.

The only wound upon the body was a knife wound in the leg. The wound of entrance was almost exactly the width of the knife blade; the weapon having been driven straight to the femur, and the point having severed the femoral artery. Death resulted from loss of blood in about an hour and one-half or two hours after the stabbing occurred. The wound on the deceased's leg was about three or four inches below the hole cut by the knife in deceased's trousers.

From the point on the sidewalk where the witnesses say deceased was standing when defendant returned to him, after being called back, to the bed upon which deceased fell, there was a trail of blood. Defendant's hat was afterwards found in the house. The knife and rifle were found in the western part of Chillicothe, and there was evidence that, about an hour after the stabbing, defendant was seen, apparently very drunk, in that part of the city. He was arrested at his home nearly two hours thereafter. There is some little evidence of furtiveness in defendant's manner of approaching his home; but the only witness who testified in regard to this says defendant knocked on the door two or three times and demanded to be let in, but, receiving no reply, struck a match, stood there a little while, and then "came back past the west side of the house, and, as he got to the southwest corner he made a dive out where there is some brush there * * * and came right out toward the yard fence." Witness, seeing defendant would discover him, started toward his own home, and as he passed defendant the latter "ran his hand into his side pocket." Witness said, "Good evening;" and defendant said, "Hello, is that you, Uncle Dave?" Witness thereupon covered defendant with his rifle and said, "Gordon, come go with me;" to which defendant responded, "All right." At this time, two blocks and a half away at deceased's residence, a somewhat large and excited crowd had gathered. As witness and his prisoner proceeded westward along the street, defendant fell down several times and acted as if drunk. He was bareheaded and unarmed.

The information charged not only murder in the...