State v. Wells

• Decision Date: 06 October 1894
• Citation: 54 Kan. 161,37 P. 1005
• Parties: THE STATE OF KANSAS v. JAMES W. WELLS
• Court: Kansas Supreme Court

37 P. 1005

54 Kan. 161

THE STATE OF KANSAS v. JAMES W. WELLS

Supreme Court of Kansas

October 6, 1894

Appeal from Ford District Court.

THE defendant was charged with having murdered Loren E. Warren and was convicted of murder in the second degree. It was shown on the trial that the defendant was a keeper of a gambling room in Dodge City. The deceased, Warren, was a bartender. The two parties had passed the night preceding the tragedy in the defendant's gambling room. The defendant commenced drinking about four o'clock in the morning, and drank until he became intoxicated. About nine o'clock he lay down on a table, in a saloon in the basement of the Oriel block, where he slept until somewhere about one o'clock in the afternoon, when the deceased came and woke him up. The two went out of the saloon together, and soon came back, when Warren said to the bartender, "Belmere, some one has 'touched' Jimmie," meaning that some one had taken his money. Warren told Wells that he had the money inside his vest pocket. Wells then ran his hand in his pocket and pulled out his money. The two appear to have been together more or less from that time until the occurrence of the tragedy, the defendant at various times still declaring that he had been robbed. A short time before the tragedy the two were together in the Palace drug store. Wells was still insisting that Warren had his money. Warren said, "No I haven't; I have got $ 10 that belongs to you." Warren then gave Wells $ 10. They then left the Palace drug store together. Soon afterward they were together inside an iron railing which incloses a stairway leading into the saloon where the deceased worked, under the Delmonico hotel building. Wells was still claiming that he had been robbed. Warren was trying to persuade him to go down in the basement to talk the matter over. Some of the time Warren had hold of him. Wells said, "Let me go; I want to go home," and called for aid. Warren appears to have been detaining him there inside of the rail. He told Wells if he would come around when he was sober and say he had robbed him, he would made it all right with him or pay him. Warren finally let go of Wells, and he climbed out over the railing. After Wells had started away, he said, "I'll slow you whether I'll go home or not." The defendant then went to Zimmerman's hardware store and tried to buy a gun. The proprietor refused to sell one to him. While he was in the store Fitzgerald came in, and the defendant asked him to intercede with the proprietor to help him get a gun, saying that he believed they had one, but would not sell it to him. He wanted Fitzgerald to say he was all right. This Fitzgerald refused to do, but told Wells that he did not think he was in a fit condition to have a gun. They then talked the matter of the difficulty between Wells and Warren over, Fitzgerald advising the defendant to go home and not have any trouble. During the conversation Wells said, in substance, that if he could get a gun he would "make Warren fight or hide out." Fitzgerald offered to go home with him, but the defendant did not seem inclined to have him do so.

From the hardware store, which was the next building to the Delmonico hotel, he appears to have gone into Laubner's cigar store, where he asked Laubner for a gun. Laubner refused, saying that he hadn't any. The defendant said "You have got one in the safe." Being asked what he wanted a gun for, he said: "To pawn it." The defendant then went to a second-hand store kept by A. P Coons in the next block west, where he succeeded in buying a pistol. The defendant also asked for cartridges, and tried to open the gun, but did not seem to understand it. Coons showed him how to open it, and the defendant put the cartridges into it. As the defendant went out the door, Coons noticed that he staggered slightly. The defendant then went back east on Front street to the Delmonico hotel building, and down the stairway leading to the saloon. After a very short time he came back up the stairway, and again started west. Soon afterward the deceased, Warren, came down the street, going east. As they approached each other, several parties called out to Warren to look out; that Wells had a gun. The parties continued walking toward each other. There were a number of persons on the street, and one man seems to have been walking between Wells and Warren, so that Wells did not see Warren until they were within a short distance of each other. When they were very close together, Wells raised his pistol and fired. Warren then rushed on him, threw him down, and choked him. Some of the bystanders took hold of Warren, and pulled him off from Wells. As they did so, Warren said: "Let me alone; I know what I am doing; I am shot." After he was raised up, he kicked Wells in the face. Shortly afterward he sank down on the sidewalk. He was then taken up and carried into one of the neighboring store buildings, where he very soon expired, the ball having penetrated the lower part of the heart. The defendant is shown to be a small man, weighing not much over 100 pounds. The deceased was a large man weighing over 200. The parties had always been good friends until the day of this occurrence.

Judgment affirmed.

Ed. H. Madison, B. F. Milton, and J. W. Ady, for appellant.

John T. Little, attorney general, F. A. Mitchell, county attorney, for The State; Sutton & McGarry, of counsel.

ALLEN J. All the Justices concurring.

OPINION

ALLEN, J.:

Numerous questions are raised by the appellant, which we will consider in the order in which they are presented in the brief.

I. It appears that the opening statement of the case to the jury was made by W. M. Sutton, who was neither the prosecuting attorney of the county nor his deputy. The defendant objected at the time, and insisted that, under the statute, it was a personal duty resting on the county attorney, which he could not delegate to private counsel. The court overruled the objection, and the opening statement was made by Mr. Sutton; the county attorney, Mr. Mitchell, being present, however, and requesting that Mr. Sutton be allowed to make the opening statement. This question was considered in the case of The State v. Wilson, 24 Kan. 189, where Mr. Ady, one of the counsel for the defendant in this case, was employed to assist the county attorney in a prosecution, and was paid by the father of the deceased, for whose murder the defendant was tried. It was there held, that it was not error to permit private counsel to assist the public prosecutor. In this case, it appears that the county attorney was personally present, and that Mr. Sutton acted with his consent. We do not think that P 5295 of the General Statutes of 1889 declares any special rule with reference to the opening statement to the jury. The law makes it the duty of the county attorney to conduct criminal prosecutions on behalf of the state, and all steps in the trial are alike under his supervision and control. (See, also, The State v. Smith, 50 Kan. 69.)

II. Objection was made to the competency of Barrow and Torline as jurors. The only showing of anything like a fixed impression as to a material fact in the case was disclosed by the examination of Torline, and that was with reference to the fact that Wells had been killed. While the word "murdered" was used by the juror, he evidently did not use it in the legal sense, and stated that he had no opinion as to whether the killing was justifiable or not. As there was no conflict whatever in the evidence with reference to the fact that Warren was killed, nor as to the further fact that the defendant killed him, we do not perceive that the defendant could be prejudiced in any manner by the impression this juror had with reference to it before the trial. We think the case comes within the rule declared in The State v. Medlicott, 9 Kan. 257; The State v. Wells, 28 id. 321. The facts in this case are not as strong as in the last case cited.

III. It is claimed that a part of the thirty-seventh instruction, as written by the court and read to the jury, was erroneous, and that, having proceeded so far, the court had no power to withdraw it; that the error, having been once made, was irremediable. The record shows that, after the instruction had been given, the court, at the request of counsel for the state, withdrew the objectionable part of it. Check marks were made showing where the part withdrawn commenced, and where it ended, and pencil lines were drawn across the part withdrawn, and the attention of the jury was pointedly called to the portion withdrawn by the court, and the instructions so marked were taken by the jury to their room. There can be no doubt as to the right of the court to modify or withdraw an erroneous instruction at any time before the case is finally submitted to the jury. The very purpose of allowing exceptions to instructions is that the attention of the court may be directed to any part that may be erroneous, and that the court may then and there review and correct the error. This proposition is amply supported in the authorities. ( Sittig v. Birkestack, 38 Md. 158; Jones v. Talbot, 4 Mo. 279; Hall v. The State, 8 Ind. 439; Sage v. Railroad Co., 134 id. 100; Thomp. Ch. Jur. § 93.)

It is urged in this connection that the language used by the court at the time this part of the instructions was withdrawn indicated that the court still believed it to be sound, and that the jury might have been influenced by it notwithstanding its withdrawal, believing that the judge was right in the first instance. We do not perceive any special force in the argument. In all cases where a trial judge gives an erroneous instruction, it is to be presumed that, at the time he wrote it, he thought it was a correct expression of...