State v. Mounkes

• Decision Date: 09 November 1912
• Docket Number: 18,269
• Citation: 127 P. 637,88 Kan. 193
• Parties: THE STATE OF KANSAS, Appellee, v. WALTER MOUNKES, Appellant
• Court: Kansas Supreme Court

127 P. 637

88 Kan. 193

THE STATE OF KANSAS, Appellee, v. WALTER MOUNKES, Appellant

No. 18,269

Supreme Court of Kansas

November 9, 1912

Decided July, 1912.

Appeal from Lyon district court.

Judgment reversed and case remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW--Homicide in Defense of Third Party. Whether one may defend another from death or great bodily harm does not depend upon the reality or imminence of the danger nor upon the belief, as to these facts, of the one supposed to be in peril, but depends upon the facts as they reasonably and actually appear to the defender.

2. JUSTIFIABLE HOMICIDE--Common-law Rule. By the provisions of section 11 of the crimes act (Gen. Stat. 1909 § 2499) the common-law rule is ingrafted into the statute; and upon a charge of murder or manslaughter the accused must, on trial, be acquitted if the alleged homicide was committed under circumstances or in a case where, by the common law, such homicide was justifiable or excusable.

3. JUSTIFIABLE HOMICIDE -- Same. Under the common law one may, without incurring criminal liability, take life if necessary to prevent the murder of, or other atrocious felony against, his brother. Justification for an assault with intent to kill can not require more than when death results.

W. L. Huggins, Henry E. Ganse, and Humbert Riddle, all of Emporia, for the appellant.

John S. Dawson, attorney-general, S. N. Hawkes, assistant attorney-general, and O. S. Samuel, county attorney, for the appellee.

OPINION

SMITH, J.:

The appellant, after a preliminary examination, was prosecuted on an information and convicted of the crime of assaulting with a deadly weapon with intent to kill one Ernest Van Sickle.

The first claim of error is the excluding of the full transcript of the evidence taken at the preliminary hearing. The evidence was not offered as an impeachment of the testimony given by any witness on the trial but, as said in the appellant's brief, for the purpose of proving a negative; that the testimony of all the witnesses had been "pointed up," strengthened, and materially added to between the time of the preliminary examination and the trial. If there is any material alteration or contradiction in the evidence of a witness as given at the preliminary hearing and his testimony at a subsequent trial, which tends to impeach the witness or in any way to weaken the credibility of the story told in court, the portion of the evidence given at the preliminary hearing, necessary for the jury to make the comparison, should generally be admitted, but we can hardly conceive a case where all the evidence, covering, it is said, fifty typewritten pages at this preliminary hearing, should be admitted. At any rate the transcript fails to show that there was any prejudice to the appellant in its exclusion.

An entertainment was in progress at a country schoolhouse in the county. Four young men, or boys, namely, Ernest Van Sickle, twenty-four years old, Wilbur Jones, seventeen years old, Leslie Jones, his brother, twenty-one years old, and Floyd Byrt, twenty-three years old, had arrived and had been in the schoolhouse. The appellant, Walter Mounkes, twenty-two years old, and his brother, Arthur Mounkes, aged sixteen, arrived as the four others came out of the schoolhouse at some interruption in the proceedings. As the four passed the Mounkes boys, who stood in the doorway outside, Walter Mounkes said to Wilbur Jones that he understood Leslie Jones wanted to see him. Walter Mounkes and Leslie Jones stepped aside and conversed in a friendly manner for a short time and returned. As they returned, Arthur Mounkes pointed his foot toward Wilbur Jones and applied a vile epithet to him, whereupon Wilbur Jones knocked Arthur Mounkes down, and as soon as he got up Arthur started to run. Wilbur Jones took after him, Leslie and the other boys following. They ran a short distance to a wire fence which compelled Arthur to turn, and he made a circle back to the porch of the schoolhouse. There he was overtaken and thrown down. Before and after being thrown down, he called to the appellant for help.

The appellant testified that his brother Arthur called for help and said, "They are killing me"; that he started to go to Arthur's aid and took a knife out of his pocket for the purpose of protecting and. defending his brother; that he struck Van Sickle because Van Sickle obstructed his passage by picking up a rock and in a threatening attitude exclaimed, "Let's kill the " (using a vile epithet). That to defend himself and to enable him to go to his brother's assistance, he struck Van Sickle with the knife. It was shown that there was a serious, possibly dangerous, wound made in Van Sickle's back.

Several objections are made to the introduction of testimony, but as the case is to be tried again and the same questions are not likely to arise, we will not consider them in order.

The most serious objection is to the instructions, especially No. 23, which reads:

"Upon these matters the jury is instructed that epithets or vile names applied by one to another, however abusive, will not justify one party in making an assault upon another; but it is also the law that one who uses vile names toward another which is calculated to provoke an assault and which does provoke an assault on the part of another can not resort to the use of a deadly weapon on his assailant and escape the consequences under the plea of self-defense. And so in this case, if the jury shall believe from the evidence that Arthur Mounkes by applying to the Jones boy a vile epithet provoked an assault upon himself by the Jones boy, then in the conflict between said Arthur Mounkes and said Jones boy said Arthur Mounkes would not have had the right to use a deadly weapon upon the Jones...