State v. Yarborough

• Decision Date: 09 June 1888
• Citation: 18 P. 474,39 Kan. 581
• Parties: THE STATE OF KANSAS v. J. H. YARBOROUGH
• Court: Kansas Supreme Court

18 P. 474

39 Kan. 581

THE STATE OF KANSAS v. J. H. YARBOROUGH

Supreme Court of Kansas

June 9, 1888

Appeal from Lyon District Court.

PROSECUTION for murder in the first degree. From a conviction and sentence as charged, at the May term, 1887, the defendant, J H. Yarborough, appeals. The opinion states the material facts.

Judgment affirmed.

Scott & Frith, for appellant.

J. W Feighan, county attorney, and L. B. Kellogg, for The State.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

On the 25th day of January, 1887, an information was filed in the district court of Lyon county against J. H. Yarborough for murder in the first degree, charging him with having feloniously, willfully, premeditatedly, deliberately, and of malice aforethought, killed and murdered L. D. Collier, with a revolver, on the 22d day of November, 1886, in said county. The cause came on for trial at the May, 1887, term of court, resulting in a verdict of murder in the first degree. In due time, a motion for a new trial was filed, and overruled; exceptions taken, and judgment rendered accordingly.

The evidence disclosed the following facts: L. D. Collier, just prior to his death, was an agent of the Atchison, Topeka & Santa Fe Railroad Company, and had charge of the material yards at Emporia; Yarborough was his clerk; they both boarded at the Palace Hotel in Emporia; at the time that Yarborough commenced boarding at the Palace Hotel, about six weeks before he killed Collier, the latter made arrangements with the hotel proprietor to be security for his board; up to the day of the killing, the relations of the parties were very friendly; the men were about the same weight; Yarborough was the taller of the two, but Collier was of heavier weight; they were both young men about the same age; Collier went from Emporia to Kansas City on Saturday, and returned the next Monday in the afternoon; in his absence, Yarborough attended to the office; before Collier returned on Monday, Yarborough had been drinking somewhat; in the afternoon of Monday, Collier and Yarborough had some angry words at the car clerk's office in the depot about five o'clock, whether or not a car of material had been sent out in time, Yarborough claiming it had; Yarborough asked Morse for the bill of the car, which was found, and then said to Collier, "There is the bill now; so you have had your trouble or worry for nothing;" Collier said to Yarborough that "he ought to have attended to business a little better during his absence;" Yarborough answered, "Haven't I always attended to business? haven't I always done your work?" Collier replied, "I don't want to talk with you; you are drunk;" Yarborough said, "If I have been drinking, I can talk;" Collier said, "Well, I don't want you to talk to me; you are drunk now; go home, and I will talk to you tomorrow." Yarborough answered with a vulgar remark, and Collier struck Yarborough three times, the last time knocking him senseless; after being knocked down, Yarborough had a bruise over his left eye and was bleeding at the nose; he was then very much excited and very angry, and said he "wanted Collier to come back and give him an opportunity to whip him." After Yarborough had got up from where he was knocked down and had washed his face, he went into the train dispatcher's office and walked to the hook where Collier's messages hung; while standing by the hook looking at the messages, Collier attempted to pass by him going out; Yarborough jumped at Collier and struck him, leaving a mark or scratch across his forehead; they clinched, but parties interfered and separated them; F. A. Burgess took Yarborough by the arm and went with him out of the building peaceably. Soon afterward Collier started down stairs, and at the foot of the stairs he met Yarborough; both seemed somewhat excited, and Yarborough acted as if he wanted to make Collier fight again; this lasted only a few minutes, as Collier went away; Yarborough then went to the Palace Hotel; this was about six o'clock; at this time he seemed to be angry; upon the stairway of the depot, before leaving, he said, "If I live, he dies." This was after the fights, and before the meeting at the foot of the stairs; he also had a conversation with Prescott, of the Palace Hotel, before supper, the drift of which was about Collier and getting even, or having his revenge; although under the influence of liquor and very much excited, he took his supper, and after he had finished, came out of the dining-room and was for a little time in the office of the hotel; he left the hotel about half-past six o'clock; just before seven o'clock Yarborough was in Lloyd & Thomas's store; he seemed to be under a peculiar strain, quiet, and yet suppressing his excitement; he said to L. M. Helig, "I have had a scrape with Collier, and I got the worst of it;" he further said, "I am going to get even with him if I have to get a gun and kill him;" about a quarter past seven Yarborough went to the confectionery and lunch-room of W. E. Rhoades, and asked him "if he had a revolver;" Rhoades answered "Yes;" and Yarborough asked him "if he would loan the revolver;" then Rhoades asked him "if he had had any difficulty with anyone of late;" Yarborough said "he had not;" after a conversation of about five minutes, Rhoades handed to Yarborough his revolver; Yarborough told him he simply wanted to "carry it till morning;" but did not indicate any other reason for wanting it; at this time Yarborough acted very quietly, and there was nothing in his manner to attract specially the attention of Rhoades; at the time Rhoades handed the revolver to Yarborough it was loaded; soon after leaving the place of business of Rhoades, Yarborough went to the house of Mr. Bundrem, on Market street, where Collier roomed; at the time, there were in the house Mr. and Mrs. Bundrem, Mr. Jones, Mrs. Weaver, Mr. Collier and others. Yarborough rapped at the door; Collier arose at the knock, saying, "he would answer the door;" Mrs. Bundrem insisted on going to the door, but Collier said, "no, he would go;" Collier had just time to get to the door and open it, when a pistol-shot was heard; Mrs. Bundrem rushed to the door, and Collier said to her, "I am shot;" Collier then went through the sitting-room and pantry into the kitchen, and fell dead. As he started from the door he said, "He is coming;" Yarborough came into the hall through the open door; Mrs. Bundrem caught him by the arm; he then had the revolver in his hand; she said to him, "Don't shoot;" Yarborough said, "No, I won't shoot you; I came here to shoot Collier; I thought he walked off so strong that I had missed my aim; I came here to shoot him, and I am going to shoot him." Yarborough went into the dining-room and was standing there with his revolver in his hand looking at Collier, who was lying on the floor, dead. Yarborough also told Mrs. Bundrem in the house after he shot Collier, that "He came there to kill Collier, and he hoped to God he had accomplished what he came for." At this time he pushed his hat back on his head and said, "This is what I killed him for"-- showing a little lump on his forehead. The bullet from Yarborough's pistol struck Collier in the middle of the breast; Yarborough gave the revolver to Mrs. Bundrem after the killing of Collier, and she put it away. After the killing, Yarborough wanted Mr. Bundrem to protect him; he was afraid of being mobbed. When the crowd began to gather he became excited and was afraid of being lynched; he said, "If he was in Texas, he would be lynched inside of an hour." He was soon arrested, and went away from the house in charge of the sheriff of Lyon county. On being asked his name he wrote it in full, and told the witness to write "guilty" under it. About ten o'clock, after reaching the jail, he asked the sheriff to telephone for a special train to take him to Topeka to protect him from lynching. From the time he came to jail until about three o'clock in the morning, his manner was wild, acting like a drunken man, a crazy man; one witness thought he acted wild, whether drunk or crazy, couldn't say; he would cry and curse so that one witness thought he was like a crazy and not a drunken man; he yelled out, "Give me my gun, give me my gun, you said you would protect me;" he expressed fears of a mob, and no one was near the jail except the officers, though there had been a crowd upon the stairway when he was taken to jail, but the crowd made no outcries or threats. The next morning about seven he awoke; did not know where he was, and when told he was in jail for the murder of Collier, said his mind was like a dream; asked about some dispatches, and said he didn't know he had killed Collier.

Several errors are alleged, for which a reversal of the judgment of the trial court is asked. The more important are: First, it is claimed that the trial court erred in its attempted definition in its instructions to the jury of the two degrees of murder, to which the court limited the consideration of the jury; and second, that the court erred in confining the jury to the consideration of murder in the first and the second degrees, and in refusing to instruct the jury as to the several degrees of manslaughter.

In its instructions to the jury, the court made malice aforethought an essential ingredient in each degree of murder; and instead of defining malice aforethought as "such a depraved condition of mind as shows a total disregard of social duty and a heart bent wholly on evil," or as a "wicked purpose or intention," incorporated in its definition some words making malice a condition of mind showing the existence of a premeditated and deliberately-formed design on the part of the slayer to do the killing. Conceding that the...