[Copyrighted Material Omitted]
Appeal
from Chautauqua District Court.
INFORMATION
for murder in the first degree. The defendant S.D. Witt was
charged with the felonious shooting and killing of C
Bernhardt, in the county of Chautauqua, on the 23d day of
September, 1883. Trial at the November Term, 1883, of the
district court of said county. After the testimony had been
concluded the defendant asked the court to give the jury the
following special instructions:
"First.
If the jury, or any one of the jury, after consideration of
all the evidence in said cause, entertain a reasonable doubt
as to whether or not the defendant, S.D. Witt, was present at
the time and place of the alleged homicide, in the
information in this case charged, then it is the duty of the
jury to acquit the defendant.
"Second.
If any one of the jury, after having considered all the
evidence in this case, and after having consulted with his
fellow-jurymen, should entertain a reasonable doubt of the
defendant's guilt, or after such consideration and
consultation should entertain a reasonable doubt as to
whether or not the defendant was present at the time and
place of the commission of the alleged homicide, then the
jury cannot find the defendant guilty."
The
court refused the instructions requested by the defendant
and thereupon gave to the jury the following general charge:
"Gentlemen
of the Jury: The information in this case charges the
defendant, S.D. Witt, with the crime of murder in the first
degree, in the willful, deliberate and premeditated murder of
C. Bernhardt, in this county, on the 23d day of last
September, by shooting him with a shot-gun.
"Murder
in the first degree is punishable with death, in the
discretion of the governor of the state, at such time as he
may appoint, not less than one year from the time of
conviction, the convict to remain confined within the walls
of the state penitentiary at hard labor in the meantime
until the governor shall order his execution.
"Murder
is the unlawful killing, by a person of sound memory and
discretion, of any reasonable creature in being, and in the
peace of the state, with malice aforethought, either express
or implied.
"Every
murder committed by means of poison, or by lying in wait, or
by any other kind of willful, deliberate and premeditated
killing, is deemed murder in the first degree.
"That
you may the better comprehend the legal definition of murder
heretofore given, it is proper that I should explain the
meaning of the term 'malice aforethought.' Malice in
its legal sense differs from the meaning which it bears in
common speech. In its common acceptation it signifies
ill-will, hatred or revenge toward a particular individual.
Such a condition of the mind would of course constitute
malice in the eye of the law. But such is not necessarily its
legal sense--the meaning intended to be conveyed by that term
in the legal definition of murder. Malice in its legal sense
denotes that condition of one's mind which is manifested
by his intentionally doing a wrongful act without just cause
or excuse. It means any wicked or mischievous intention of
the mind. If one gives a perfect stranger a blow likely to
produce death, he does it with malice if he does it
intentionally and without just cause or excuse. So, in a
prosecution for murder, which must always be stated in the
charge to have been committed with malice aforethought, it is
not necessary, in order to support such a charge, to show
that the accused had any enmity against the deceased, nor
would proof of the absence of ill-will furnish the accused
any defense, if it had been proven that the act of killing
was intentional, and had been done without justifiable cause
or excuse.
"The
term 'aforethought' means thought of beforehand,
however short the time.
"In
order to constitute murder in the first degree, a design must
be formed to kill willfully, that is, with the intention that
the act done should have the effect of taking the life of a
human being; maliciously, that is, with malice aforethought;
as above defined, deliberately, that is, with cool purpose,
after having weighed and considered the mode and means by
which such design should be effected; and with premeditation,
that is, the design to kill must have been formed before the
act is performed by which the death is produced.
"In
order to warrant convicting the defendant of the crime of
murder in the first degree as charged in the information, you
must be satisfied from the evidence, beyond a reasonable
doubt, that he, the defendant, on or about the 23d day of
September last, and in the county of Chautauqua and state of
Kansas, did willfully, deliberately, premeditatedly, and of
his malice aforethought, kill C. Bernhardt, by shooting him
with a shot-gun loaded with gunpowder and leaden shot.
"A
mere difference in the spelling of the name which the
deceased bore, and that alleged in the information to have
been his name, is immaterial, if the name proved be idem
sonans, as the law books express it; that is, of the same
sound or sounding the same, with the name stated in the
information. It is necessary, however, that the name proved
should at least be idem sonans with that stated in the
information; and this is one of the material averments of the
information which the state must establish by the evidence in
the case.
"There
has been some evidence produced on the behalf of the
defendant in this case tending to prove an alibi; that is,
that the defendant was at a different place than that at
which the alleged homicide was committed at the time of its
commission. It is hardly necessary that I should say to you
that proof that a party accused of crime was so situated, at
the time and place of its commission, as to render it
impossible that he should have participated in its
commission, is conclusive proof of the fact of his innocence.
To make a complete alibi, however, the evidence should show
that the accused was so situated at the time of the
commission of the crime as to make it impossible that he
could have been present at the place when the crime was
committed. The defense of an alibi is in no sense an implied
admission of the defendant's guilt in case the proof
should fail to establish the alibi. One of the essential
averments in the charge preferred against the defendant in a
criminal case is, that he was present and committed the act
which constitutes the crime, and any evidence introduced by
the defendant tending to show that he was not so present, is
legitimate for the purpose of disputing the averment in the
charge against him that he was present at the commission of
the crime. So that, if, upon due consideration of the whole
evidence in this case, including that tending to establish an
alibi on the part of the defendant, you have a reasonable
doubt of the defendant's guilt, you should return a
verdict of not guilty.
"The
defendant is presumed innocent until he is proved guilty, and
if there is a reasonable doubt whether his guilt has been
satisfactorily shown by the evidence, he should be acquitted.
It is not sufficient in a criminal case that the facts and
circumstances proven by the state should merely be consistent
with the defendant's guilt. In order to justify a
conviction, the facts and circumstances proven should not
only point to the defendant's guilt, but when considered
altogether, they should be susceptible of no other rational
solution except upon the theory of the defendant's guilt.
"You
are the exclusive judges of the weight of the evidence; of
the facts proven; and of the credibility of the
witnesses."
The
defendant excepted to the general charge, and also to the
ruling of the court in refusing the special instructions
which he had requested. The jury returned a verdict, finding
the defendant guilty as charged. He moved for a new trial
upon several grounds, but relied principally upon the
following:
"The
court in its instructions misdirected the jury in material
matters of law.
"The
court refused to give to the jury certain special
instructions in material matters of law asked for by
defendant in due time, and which said instructions the
defendant was entitled to have given as asked.
"The
foreman of the jury, H. A. Koogle, was guilty of improper
conduct, tending to prevent a fair, impartial and due
consideration of the cause, in this: That said H. A. Koogle,
after the jury had retired to their jury room to deliberate
upon their verdict in the cause, and immediately upon their
electing him as the foreman of the jury, proposed to the jury
that as a number of them were christian men, that the
deliberations of the jury be opened with prayer; and
thereupon immediately in a loud voice in the hearing of said
jury prayed at great length, tending thereby to exert upon
the minds of the jury an undue influence.
"The
jury, while in charge of the officer appointed to take charge
of them, and while deliberating upon the verdict in the
cause, were improperly placed and kept in two separate rooms,
with a door of communication between them, permitting the
jurors to pass back and forth at will; said jury were
thereby, during a great portion of their deliberations,
separated, and conferred in clusters separately as to their
verdict in the cause, out of the hearing of the others of the
jury.
"The
verdict of the jury in said cause is not sustained by
sufficient evidence."
This
motion was overruled, and judgment entered against the
defendant, from which he appeals to this court, and asks a
reversal of the judgment upon the grounds stated in his
motion for a new trial.
Judgment reversed and cause remanded.
Charles
J. Peckham, and Lemmon & Shartell, for app...
