State v. Moran

• Decision Date: 09 May 1891
• Citation: 26 P. 754,46 Kan. 318
• Parties: STATE v. MORAN.
• Court: Kansas Supreme Court

26 P. 754

46 Kan. 318

STATE v. MORAN.

Supreme Court of Kansas

May 9, 1891

Syllabus

1. Where a defendant is charged with an assault with a deadly weapon with intent to kill, under the provisions of paragraph 2159, Gen. St. 1889, and the evidence of the prosecution tends to establish that offense, and the evidence of the defendant tends to show that he shot off the deadly weapon (a pistol) into the ground with no intention to harm, hurt, or kill any one, and that no one was shot, struck, or hurt thereby, it is error for the district court to instruct the jury that they might convict the defendant of an assault with intent to commit manslaughter.

2. It is a violation of section 207 of the Criminal Code to try any person accused of felony unless he is personally present throughout the trial. State v. Myrick, 38 Kan. 238 16 P. Rep. 330.

Appeal from district court, Bourbon county; STEPHEN ALLEN, Judge pro tem.

Keene & Campbell and J. B. Larimer, for appellant.

J. N Ives, Atty. Gen., and L. C. Boyle, for the State.

OPINION

HORTON, C. J.

Dennis Moran was in formed against by the county attorney of Bourbon county for an assault with intent to kill Alexander Mason on the 16th day of November, 1888. He was tried and convicted "of an assault with intent to commit manslaughter." He was sentenced to confinement at hard labor in the penitentiary of the state for the term of 18 months. From the sentence and judgment rendered against him he appeals to this court. The evidence of Alexander Mason, the prosecuting witness, was as follows: "I live in Bourbon county, in this state, two miles south and one-half mile east of Fulton. I am acquainted with the defendant, Dennis Moran. On or about the 16th day of November, two years ago, in the evening, between five and six o’clock, in Bourbon county, in this state, I was doing up my chores and somebody called me, and I answered. I was in the barn putting in corn for the team, and I answered and asked who it was. I stepped out and saw it was Den Moran. I walked out towards him, and said, ‘Den, go home. I don’t want to talk to you.’ He says, ‘You God damn son of a bitch, I am going to kill you,’ and shot. When I saw him draw his revolver, I hollowed to Mrs. Graham. She stepped to the door, and saw him shoot. I hollowed to her to get me my gun. He snapped his revolver twice, and then put spurs to his horse. I was about fifteen or sixteen steps from Moran when he shot at me. I heard the bullet whiz by me about a foot or two from my face. I had been shot at before, and had heard a bullet whiz by me once before. The bullet struck the ground after it passed me about twelve or fifteen feet. It looked for the bullet the next day, and dug it out of the ground. I have that bullet now in my pocket. Here is the bullet. I have kept it ever since in my possession. Moran, when he rode up, after he stopped, drew his revolver, held it in his right hand, and shot at me; and after he snapped his revolver twice, and it did not go off, went east up the road as far as I could see him. I afterwards went on, and done up the night’s work, and then went over home, and they informed me that Dennis Moran had had trouble in town that afternoon with my brother Robert. Then I came to town, and got out the papers. I did not have any weapons on me at the time Dennis Moran shot at me. Had been plowing on the farm all day, and had just come in from work, and was putting up the team and feeding them. I looked at the clock when I went to the house to see what time it was. It was just about sunset, the time the shooting took place."

The defendant, Dennis Moran, testified in his own behalf as follows: "On November 16, 1888, I was in Fulton. I had some trouble with Robert Mason. I had left town, and was going out home that night, along just before dark, and, as I was going by Alec Mason’s, Mason came running out with a scoop shovel in his hand, and said to me, ‘Come in, you son of a bitch. You licked my brother, but you can’t lick me.’ This was the first thing that was said between Alec Mason and myself. Then he called for his revolver, and started for the house to get it, and after he started for the house I pulled my revolver, and shot twice in the ground near the fence. I did not shoot at Alec Mason. I merely shot in the ground. I did not see anybody there. I did not see Mrs. Graham. I had known and heard of a great many threats made by Alec Mason. Several parties had told me he intended to kill me as soon as he got a chance; and when he made the threat that he did, and called for his revolver, on November 16th, I shot twice, as I said, into the ground to scare him, in order that I might have the opportunity to run my horse and get away from him before ...