State v. Whitaker

• Decision Date: 05 November 1886
• Citation: 12 P. 106,35 Kan. 731
• Parties: THE STATE OF KANSAS v. ALBERT WHITAKER
• Court: Kansas Supreme Court

12 P. 106

35 Kan. 731

THE STATE OF KANSAS v. ALBERT WHITAKER

Supreme Court of Kansas

November 5, 1886

Appeal from Osborne District Court.

ON June 1, 1885, the following information -- omitting court, title and verification -- was filed in the district court of Osborne county:

"I the undersigned, county attorney of said county, in the name by the authority and on behalf of the state of Kansas, give information that on the 19th day of May, 1885, in said county of Osborne and state of Kansas, one John R. Miller, John Cranshaw, and Albert Whitaker, did then and there unlawfully feloniously, purposely and of their deliberate and premeditated malice, make an assault in and upon one Delbert J. Tunison, then and there being, and that the said John R. Miller a certain double-barreled shot-gun then and there loaded and charged with gunpowder and shot, which said shot-gun he, the said John R. Miller, then and there in both of his hands had and held to, against and upon him the said Delbert J. Tunison, then and there purposely, and of his deliberate and premeditated malice, did discharge and shoot off, and that the said John R. Miller with the shot-gun aforesaid, then and there, by force of the gunpowder aforesaid, shot, discharged and sent forth as aforesaid out of the said shot-gun by him the said John R. Miller, then and there so as aforesaid discharged and shot off, him the said Delbert J. Tunison, in and upon the left side of the neck of him the said Delbert J. Tunison did strike, penetrate and wound, giving unto him the said Delbert J. Tunison, by the means and in the manner aforesaid, one mortal wound of the length of two and one-half inches, and of the depth of six inches, of which said mortal wound he the said Delbert J. Tunison shortly, died, to wit, in about three hours after said wound was inflicted. The said defendants, John Cranshaw and Albert Whitaker, then and there by the means and in the manner aforesaid, aided, abetted and assisted the said John R. Miller to do as above set forth. The said John R. Miller, John Cranshaw and Albert Whitaker in manner and by the means aforesaid, purposely and of their deliberate and premeditated malice, him the said Delbert J. Tunison did kill and murder, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Kansas.

A. SAXEY, County Attorney."

Trial was begun October 12, 1885, before the court with a jury. On October 16th the jury returned a verdict against the defendant, Albert Whitaker, finding him guilty of murder in the first degree. On the same day the defendant filed his motion in arrest of judgment, and also his motion for a new trial. On October 17th both the motions were overruled. The defendant was sentenced in accordance with the verdict. He appeals.

Judgment reversed and remanded for new trial.

Hays & Pitts, and Walrond, Mitchell & Heren, for appellant.

S. B. Bradford, attorney general, for The State.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

The information filed in this case charges John R. Miller with the murder of Delbert J. Tunison, and also charges John Cranshaw and Albert Whitaker with having aided, abetted and assisted in the commission of the crime. John R. Miller was convicted of murder in the second degree, from which he appealed to this court. The opinion of this court was handed down, affirming that conviction. (The State v. Miller, ante, p. 328.)

Whitaker was convicted of murder in the first degree, at the October term of the district court of Osborne county for 1885, from which conviction he appeals.

It is claimed that the information upon which he was tried charges only an assault upon Delbert J. Tunison, and that if it charges anything more than an assault, it does not charge murder in the first degree. While the language of the information is subject to some criticism, we think it is sufficient within the authority of Smith v. The State, 1 Kan. 365, and The State v. Brown, 21 id. 38, as an information for murder in the first degree. It alleges, among other things, that on May 19th, 1885, in the county of Osborne and state of Kansas, John R. Miller, John Cranshaw and Albert Whitaker did then and there unlawfully, feloniously, purposely, and of their deliberate and premeditated malice, make an assault upon Delbert J. Tunison; that John R. Miller did, purposely and of his deliberate and premeditated malice, shoot off and discharge against the said Tunison a double-barreled shot-gun, loaded with gunpowder and shot, then and there held in his hands, giving him a mortal wound, of which he died in a few hours thereafter; that John Cranshaw and Albert Whitaker then and there, by the means and in the manner aforesaid, aided, abetted and assisted John R. Miller to do the acts set forth, and that said John R. Miller, John Cranshaw and Albert Whitaker, in the manner and by the means stated, purposely and of their deliberate and premeditated malice, did kill and murder said Tunison. The information, taken together, alleges that the killing of Tunison was willful, deliberate, and premeditated.

The evidence on the part of the state conduced to show that on Saturday, May 16, 1885, a difficulty occurred between Tunison and his wife; that her father, Jeremiah Miller, who lived a few miles away, learned of the trouble on Sunday evening, and went at once to the residence of the defendant -- Whitaker -- who was a near neighbor of the Tunisons, and remained until Monday forenoon. In the forenoon of that day, while Tunison was absent from home, Jeremiah Miller, accompanied by Albert Whitaker, went to Tunison's house, hitched up a pair of horses found there to a wagon and took Mrs. Tunison and her children to his home, carrying with him some goods and a cow, which property, together with the horses, Mrs. Tunison claimed as her own; that on Sunday preceding the killing of Tunison, as James Dwyer and wife were driving up to the house of Richard Dey, Whitaker came out from the stable up to the wagon, and handed Dey a chain, saying "Here's your chain; I will let you take it home;" that Dey then reached down in Whitaker's shirt-pocket and pulled out a pistol; that Dey asked Whitaker what use he had for it; that he answered, "He might have use for it before tomorrow morning;" that Dey asked him who he was about to get into trouble with, and that Whitaker said, "The man in the stone house," pointing to where Tunison lived; that he said he had been looking in his trunk for cartridges, but had not found any; that he was going up to where Dey was to see if he could get some; that on the same Sunday night Whitaker said to George Piatt "He wanted to see Dick Dey to get some cartridges of him; that he had laid out a couple of men in his time, and expected to have another laid out before sundown -- a person about six feet and a half tall;" that upon being asked "Who he was in trouble with," he said "His cousin -- Del. Tunison;" that Whitaker brought word to the Millers on Monday, the 18th, that Tunison was to come up that night and take the horses away; that John R. Miller and Charles Miller are sons of Jeremiah Miller and brothers to Mrs. Tunison; that John Cranshaw is a son-in-law of Jeremiah Miller, and Albert Whitaker, the defendant, a cousin of Tunison, and that all of these persons were at Miller's the night of the murder; that about eleven o'clock P. M. of said May 18th, John R. Miller and Charles Miller went down to the stable in anticipation of Tunison coming to retake the horses; that about twelve or one o'clock that night John R. Miller, without any excuse or justification, shot and killed Tunison at the stable; that on Tuesday morning, May 19th, Whitaker told John Loe "Del....