State v. McGaffin

Decision Date08 April 1887
Citation36 Kan. 315,13 P. 560
PartiesTHE STATE OF KANSAS v. THOMAS MCGAFFIN
CourtKansas Supreme Court

Appeal from Wabaunsee District Court.

PROSECUTION brought against Thomas McGaffin for the murder of Harrison Sherman. The information charging the appellant with the offense contained two counts, the first of which is as follows, (omitting court and title:)

"I W. A. Doolittle, the undersigned county attorney of said county, in the name, by the authority and on behalf of the state of Kansas, come now here and give the court to understand and be informed, that on the 26th day of November 1885, in said county of Wabaunsee, in the said state of Kansas, Thomas McGaffin did then and there unlawfully feloniously, willfully, deliberately and premeditatedly kill and murder one Harrison Sherman, then and there being, by shooting him, the said Harrison Sherman, 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 and leaden bullets, he, the said Thomas McGaffin, then and there in his hands had and held; contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the state of Kansas."

At the trial in March, 1886, the appellant admitted that he shot the deceased, but claimed that it was done in self-defense. Simeon Reeves, the only person who was present with the deceased and the appellant at the time the shooting was done, was called as a witness in behalf of the state. He gave an account of the difficulty, and among other things substantially stated that early in the morning the appellant, with a team and wagon, was about to drive upon a tract of land upon which Sherman lived, and of which he was in possession; but the land and its possession was claimed by appellant. The deceased, who was on horseback, discovered the appellant coming upon the land, and rode out some distance to meet the appellant, and told him that he must not come upon the land, and attempted to stop the horses which he was driving. Sherman declared that he would have the appellant arrested, and the appellant said, "Yes, I will shoot you," and then drew a revolver and fired one shot at Sherman. Sherman then wrapped the lash of a cattle whip which he had, around his hand, and struck at the appellant with it. The appellant then fired a second shot at Sherman, who then dismounted and was assisted by the witness into the house, where he soon afterward died. On cross-examination the witness stated that on the day following he went to Burlingame in company with Alex. Smith. The following then occurred:

"Q. Do you remember seeing a man by the name of Carr there, when you were in company with Smith? I mean the man that Smith stayed all night with that night? A. Smith went off with a young fellow; I don't know who he was.

"Q. Did you meet the man that Smith went home with and stayed all night with at the time? A. Smith was with a man; he said he went home with him.

"Q. In that conversation on the evening you were in Burlingame there with Smith, and the man that Smith went home with and stayed all night with -- didn't that man ask about how Sherman came to be killed? A. He did not ask me.

"Q. Did not he ask you or Smith? A. I do not know as to whether he asked Smith or not.

"Q. And did you not in response to that inquiry state that Sherman was out at the stable, and McGaffin came along and called him out to him and commenced shooting at him, or words to that effect? A. You mean did I make that statement?

"Q. Yes, sir. A. No, sir, I did not.

"Q. And then did not Smith say, 'Oh, hell! that is not the way you told me about it,' or 'That is not the way you told it to me,' or words to that effect?"

(An objection was made by the state, and the testimony excluded, to which ruling the defendant excepted.)

"Q. And then did not Smith proceed and say in substance that Reeves told him that he and Sherman were sitting in the shanty when you saw McGaffin coming, and Sherman said, 'I intend to take my whip and drive that old scoundrel off the farm,' and went out and got on his horse -- went out and struck at McGaffin with his whip, and McGaffin shot at him, and he struck the second time, and McGaffin shot the second time, and he struck the third time, and then rode to the house?"

(The court sustained an objection to the question, and the defendant excepted.)

"Q. And when Smith made that statement, did you not say, 'I guess that is the way of it'?"

(This testimony was also excluded, and an exception to the ruling taken by the defendant.)

"Q. Did you not make these statements, and each of them, and did not Smith make these statements, and each of them, in your presence and hearing?"

(The court sustained an objection to this testimony, and the defendant excepted.)

The appellant testified in his own behalf, and as a part of his testimony stated that Sherman wrapped the whip-lash around his hand and struck at appellant with the handle of the whip, and that then appellant drew his revolver but purposely fired past Sherman; Sherman raised his whip a second time to strike the appellant, and he, believing that his life was in danger, shot a second time with the intention of striking Sherman.

The jury returned a verdict finding the defendant guilty of murder in the first degree. Motions for a new trial and in arrest of judgment were made and overruled. The sentence and judgment of the court were that Thomas McGaffin should suffer death by hanging by the neck until dead, at such time as the governor should appoint not less than one year from the 20th day of March, 1886; and that he should be confined at hard labor in the penitentiary until the sentence of the court was carried into effect. He appeals.

Judgment reversed and cause remanded.

J. R. Burton, Wm. Thomson, and J. F. Peffer, for appellant.

John T. Bradley, S. B. Bradford, attorney general, and W. A. Doolittle, county attorney, for The State.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

The first objection taken to the conviction and sentence by the appellant is, that the information is insufficient to charge murder in the first degree, the offense of which he was found and adjudged guilty. The alleged omission or defect is, that it does not contain either the words "malice aforethought," or "with intent to kill." The charging part of the count in the information upon which the conviction rests is, that "Thomas McGaffin did then and there unlawfully, feloniously, willfully, deliberately and premeditatedly kill and murder one Harrison Sherman, then and there being, by shooting him," etc. Malice aforethought or a wicked intention to kill, previously and deliberately formed, is an essential ingredient of the offense, and this element must be plainly charged in the information or indictment. It is not important or necessary, however, that these identical words, or any particular form of words, should be used. The equivalent of these, or any words clearly expressing this element, is all that is required. The particularity of the common-law system or rules of pleading does not prevail here. As a...

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  • State v. White
    • United States
    • United States State Supreme Court of Kansas
    • December 12, 1997
    ...it is consummated. PIK Crim.3d 56.04(b) (1994 Supp.); State v. Greenwood, 197 Kan. 676, 685, 421 P.2d 24 (1966); see State v. McGaffin, 36 Kan. 315, 319, 13 P. 560 (1887). In response, the State points out that premeditation may be inferred from various circumstances, including: (1) the nat......
  • State v. Dunn
    • United States
    • United States State Supreme Court of Kansas
    • July 15, 2016
    ......It simply allowed the parties to start over, each fully informed about exactly what was at stake. In other cases involving alleged omissions from charging documents, the court rejected arguments that a prosecution was flawed from its initiation. In State v. McGaffin , 36 Kan. 315, 318–20, 13 P. 560 (1887), the information charging murder failed to include the words “malice aforethought” or “with intent to kill” but the court decided other language succeeded in conveying the same meaning. See also State v. Hillis , 145 Kan. 456, 458, 65 P.2d 251 ......
  • State v. Hebert
    • United States
    • United States State Supreme Court of Kansas
    • January 16, 2004
    ...contrived, planned or schemed beforehand to murder the victim." The defendant's proposed language originally comes from State v. McGaffin, 36 Kan. 315, 13 Pac. 560 (1887). The 1994 Supplement of PIK Crim. 3d 56.04(b), which was in effect at the time of the defendant's trial, cited McGaffin ......
  • State v. Martis, No. 88,085.
    • United States
    • United States State Supreme Court of Kansas
    • February 6, 2004
    ...there was design or intent before the act; that is, that the accused planned, contrived, and schemed") came from State v. McGaffin, 36 Kan. 315, 319, 13 Pac. 560 (1887), and was only of historical interest. This court found that PIK Crim. 3d 56.04(b) (1994 Supp.) correctly states that "prem......
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