State v. O'Neil

• Decision Date: 10 June 1893
• Citation: 51 Kan. 651,33 P. 287
• Parties: THE STATE OF KANSAS v. HUGH O'NEIL
• Court: Kansas Supreme Court

33 P. 287

51 Kan. 651

THE STATE OF KANSAS v. HUGH O'NEIL

Supreme Court of Kansas

June 10, 1893

Appeal from Marion District Court.

ON the 4th day of December, 1891, an information was filed in the district court of Marion county against Hugh O'Neil charging him with the murder of Mary O'Neil, his wife. On March 1, 1892, an amended information was filed, which omitting caption, verification, and indorsements, was as follows:

"In the name and by the authority of the state of Kansas, I, W H. Carpenter, county attorney in and for the county of Marion, in the state of Kansas, who prosecutes for and on behalf of said state in the district court of said county sitting in and for the county of Marion, and duly empowered to inform of offenses committed within said county of Marion come now here and give the court to understand and be informed that one Hugh O'Neil, at the county of Marion, in the state of Kansas aforesaid, and within the jurisdiction of this court, on the 18th day of November A. D. 1891, did then and there feloniously, willfully, premeditatedly, deliberately, and with malice aforethought, make an assault in and upon one Mary O'Neil, with the intent her, the said Mary O'Neil, feloniously, willfully, premeditatedly, deliberately, and with malice aforethought, to kill and murder; and that the said Hugh O'Neil did then and there feloniously, willfully, deliberately, premeditatedly, and with malice aforethought, and with a certain blunt instrument, to said county attorney unknown, and in a manner to said county attorney unknown, feloniously, willfully, premeditatedly, deliberately, and with malice aforethought, and with the intent aforesaid, inflict upon the head, face, and body of her, the said Mary O'Neil, certain mortal wounds, bruises, cuts, and contusions; and that the said Hugh O'Neil did then and there feloniously, willfully, premeditatedly, deliberately, and with malice aforethought, and with the intent aforesaid, strike, kick, beat and choke her, the said Mary O'Neil, with his hands and feet, in and upon the head, face, neck, legs, arms, and other parts of the body of her, the said Mary O'Neil, thereby inflicting certain other mortal wounds, bruises, cuts and contusions on her, the said Mary O'Neil; and that the said Hugh O'Neil did then and there feloniously, willfully, premeditatedly, deliberately, and with malice aforethought, and with the intent aforesaid, cast and throw said Mary O'Neil down upon the ground, and against a certain stone wall, with great force and violence, thereby inflicting upon the head, face, legs, arms and other parts of the body of her, the said Mary O'Neil, certain other mortal wounds, bruises, cuts and contusions, of which mortal wounds, bruises, cuts and contusions so received by said Mary O'Neil as aforesaid, and so inflicted upon her, the said Mary O'Neil, by said Hugh O'Neil as aforesaid, Mary O'Neil did then and there instantly die. Wherefore, the said county attorney sayeth that said Hugh O'Neil did then and there feloniously, willfully, premeditatedly, deliberately, and with malice aforethought, and with the intent aforesaid, kill and murder the said Mary O'Neil, contrary to the statute in such cases made and provided, and contrary to the peace and dignity of the state of Kansas."

The defendant challenged the information by a motion to quash, by a motion to compel the state to elect, and by a motion in arrest of judgment, which were overruled. On the 21st of March, 1892, the trial of the cause was commenced, and continued from day to day until the 4th of April, 1892. After hearing the evidence, the instructions of the court, and the argument of counsel, the jury returned a verdict against the defendant of guilty of murder in the second degree. On the 4th of April, 1892, the motion for a new trial, which had been filed by the defendant, was overruled, and thereupon the court sentenced him to confinement in the penitentiary of the state for 25 years, at hard labor. He appeals.

Judgment affirmed.

Frank Doster, and Madden Bros., for appellant:

1. The defendant attacked this information by motion to quash, by motion to compel the state to elect, and by motion in arrest of judgment.

The court overruled all motions leveled against it, to which the defendant properly excepted. It will be seen that at least three separate death strokes or attacks upon deceased are alleged in the one count, with all the distinctness and separate formality of three several counts, without appropriating the assault alleged to either, and without alleging which of the same the deceased died of or whether she died of all. This is no compliance with the statute that requires the information to state the facts constituting the offense in plain and concise language, without repetition. The information was bad for duplicity, uncertainty, indefiniteness, and want of precision. The strokes complained of were either inflicted as a part of different transactions or as part of the same transaction. No other ways are possible. (1) If they were part of different transactions, they would be separate offenses, and, according to the precedents, they could be joined in the same informations but in different counts. 10 Am. & Eng. Encyc. of Law, 699; The State v. Goodwin, 33 Kan. 538; The State v. Hodges, 45 id. 392. (2) If the strokes were part of the same transaction, it is proper to charge them in different counts to meet the exigencies of the proof, even if the several counts are repugnant and inconsistent with each other. 10 Am. & Eng. Encyc. of Law, 699; 1 Whar. Pl. & P., § 297. This rule is expressly sanctioned by our statute. Crim. Code, § 123. (3) If the strokes were part of the same transaction, they may all be set forth as such in one count, alleging that death occurred from the combined effect of all. This rule has a limitation that the acts must not be inconsistent or repugnant with each other. 1 Bish. Cr. Proc., § 453. Neither of these precedents is observed in the present case. The manner of statement distinctly suggests that the informant intended to charge three separate and distinct offenses, which were separate charges of murder, or felonious assaults at least, on which a separate conviction could have been had if properly pleaded in separate counts. The State v. Goodwin, 33 Kan. 538. See, also, Max. Cr. Law, p. 187; 1 Whar. Prec. Ind. 120; 1 Bish. Cr. Proc., 3d ed., §§ 418, 489; Crim. Code, §§ 121, 122; Bill of Rights, § 10; The State v. Huber, 8 Kan. 447; The State v. O'Kane, 23 id. 244; The State v. Burwell, 34 id. 312.

2. The court erred in sustaining a challenge to the juror T. W. Reed for cause, made by the state, on the ground that he had served as a juror within a year. There is nothing in the record to show that he was drawn by the clerk out of the jury box as a juror.

3. The court erred in overruling the defendant's challenge of the juror Siebert for cause, because of his statement that he had a prejudice against the defense of insanity arising out of the excessive use of intoxicating liquors, and also against a drunkard and the defense of drunkenness. The defendant was compelled to challenge him peremptorily.

4. The defendant's challenge to the array should have been sustained, for the reason that 60 jurors were summoned by the judge, as a panel to try the case, when he had no authority to draw more than 24. Jury Law, § 21.

5. The next error committed by the court relates to the admission in evidence of previous alleged assaults of the defendant on the deceased. To prove these previous assaults, the state introduced the testimony of certain witnesses. We contend that all this evidence was incompetent, because it was in no way connected with the final act. 2 Bish. Cr. Proc., § 628, et seq.; 9 Am. & Eng. Encyc. of Law, p. 906. It was a clear violation of the law that forbids proof of one crime by proof of others. 1 Whar. Am. Cr. Law, § § 321, 347.

These matters were highly prejudicial to the defendant, as they had a direct tendency to influence the minds of the jury against him. The only theory upon which previous assaults are competent is, that they form a part of one comprehensive transaction, beginning with the first assault and ending with the fatal assault. So considered, each forms a link in the chain, and all are proper to be received in evidence as res gestae, to characterize the motive or intent of the defendant. 9 Am. & Eng. Encyc. of Law, 706; Pound v. The State, 33 Ga. 88; 2 Bish. Cr. Proc., § 625, and notes.

The witness whose testimony was the most exaggerated and highly colored in the matter in hand, was Hattie Rosier. The court refused to permit defendant's counsel to interrogate this only important witness the state had, as to what the condition of the deceased was with reference to being drunk on the occasion she testified about; refused to allow her to be interrogated as to conversation had about the intoxicated conditions of deceased, with view to impeach her; refused to permit defendant's witness, Mrs. Bartley, to testify to the effect that Hattie Rosier told her so; refused to permit witnesses who testified to prior assaults to be interrogated as to the defendant's kind treatment of his wife when not intoxicated; and also refused to permit the witness to be cross-examined to the number of times she saw defendant strike deceased. It is a matter of surprise that the court refused to permit the cross-examination suggested. The condition of the deceased in the respect suggested would tend to characterize the transaction and aid in the determining of its nature, whether felonious or otherwise, and the defendant had a right to test the correctness and accuracy of the witness by interrogating her in the way proposed.

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