State v. McGaffin
Decision Date | 08 April 1887 |
Citation | 36 Kan. 315,13 P. 560 |
Parties | THE STATE OF KANSAS v. THOMAS MCGAFFIN |
Court | Kansas Supreme Court |
Appeal from Wabaunsee District Court.
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:
(An objection was made by the state, and the testimony excluded, to which ruling the defendant excepted.)
(The court sustained an objection to the question, and the defendant excepted.)
(This testimony was also excluded, and an exception to the ruling taken by the defendant.)
(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.
OPINION
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
...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......
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State v. Dunn
......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 ......
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State v. Hebert
...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 ......
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State v. Martis, No. 88,085.
...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......