The State v. Kindred
| Decision Date | 21 February 1899 |
| Parties | The State v. Kindred, Appellant |
| Court | Missouri Supreme Court |
Appeal from Mercer Circuit Court. -- Hon. Paris C. Stepp, Judge.
Affirmed.
J. F Duff and Orton & Orton for appellant.
(1) The indictment is not sufficient in this, that it does not charge that the giving of the would was felonious or deliberate. State v. Feaster, 25 Mo. 324; State v Emeriche, 87 Mo. 110; State v. Deffenbacher, 51 Mo. 26; State v. Herrell, 97 Mo. 108; State v Clayton, 100 Mo. 519; State v. Fairlambs, 121 Mo. 154. Indictments for murder require great strictness. State v. Sides, 64 Mo. 383; State v. Lakey, 65 Mo. 217. (2) The court should have granted a continuance in this case. John Willeford was in the front part of the store at the time and had a better opportunity of seeing what was done at the moment of the shooting, than any other witness. His evidence was material. (3) The court in the first and fourth instructions for the State, used the technical words "lawful provocation" and "just provocation," but did not define these terms, and the jury was left in ignorance as to what these terms meant. This was error. (4) The court should have instructed on the law of manslaughter. Instead the court in the modification of instruction 2, prayed by the defendant, expressly told the jury that they must convict the defendant of murder or acquit him. State v. Elliott, 98 Mo. 150; State v. Wilson, 98 Mo. 440; State v. Bulling, 105 Mo. 204; State v. Pettit, 119 Mo. 411. (5) The instructions entirely ignored the testimony of the defendant and was error. State v. Banks, 73 Mo. 592; State v. Partlow, 90 Mo. 608; State v. Wensell, 98 Mo. 147; State v. Wilson, 85 Mo. 134. (6) The seventh instruction given for the State is not the law and there was no evidence on which to base it. The evidence all showed that the Alleys ordered defendant out of the store, and that he started to go out, and they followed him in a threatening manner. No witness testified that defendant refused to go out. Indeed, they all stated that he was going out. This instruction tells the jury that they had a right to assault defendant (lay hands on him) and put him out by force, and if defendant resisted such "laying on of hands," either by actual resistance or threatened resistance, then the Alleys were justified in the use of force. Under this instruction, the kicking of defendant by Joe Alley, and the drawing of a weapon by Andrew Alley, were justified. There was nothing that defendant had done that justified these acts of the Alleys.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
(1) The indictment specifically charges that the giving of the mortal wound was both felonious and deliberate. The citations presented are not to be attacked by us, but an examination of them will show that defendant has misconceived their purport and application when applied to the indictment in this case. State v. Turlington, 102 Mo. 647; State v. McDaniel, 94 Mo. 301; State v. Burnest, 81 Mo. 119; State v. Hughes, 82 Mo. 86; State v. Burns, 99 Mo. 471. (2) No error was committed in overruling the defendant's application for a change of venue based on the bias and prejudice of the inhabitants of the county against him. The statute lodges the determination of defendant's rights in this regard in the sound discretion of the trial court and unless it appears that this discretion has been abused, this court will not interfere. State v. Holcomb, 86 Mo. 371; State v. Wilson, 85 Mo. 134; State v. Loe, 98 Mo. 609; State v. Williams, 77 Mo. 660; State v. Dyer, 139 Mo. 205. (3) The granting or refusing of a continuance is largely a matter within the discretion of the trial court and nothing but an abuse of that discretion will warrant an interference by the appellate court. State v. Parker, 106 Mo. 217; State v. McGuire, 96 Mo. 197; State v. Walker, 69 Mo. 274; State v. Bailey, 94 Mo. 311; State v. Jewell, 90 Mo. 467; State v. Wilson, 85 Mo. 134; State v. King, 74 Mo. 612; State v. Ward, 74 Mo. 253; State v. Able, 65 Mo. 357; State v. Simmons, 68 Mo. 305; State v. Day, 100 Mo. 242; State v. Carter, 98 Mo. 176; State v. Banks, 118 Mo. 117. The application for a continuance on the ground of the absence of a witness must state facts which the absent witness would testify to and the conclusions deducible from said facts. State v. Strattman, 100 Mo. 540; State v. Jewell, 90 Mo. 467; State v. Pagels, 92 Mo. 308; State v. Bryant, 93 Mo. 278. It is not shown where the absent witness may be found. This is imperative. State v. Henson, 81 Mo. 384; State v. Underwood, 76 Mo. 630; State v. Lange, 59 Mo. 418; R. S. 1889, sec. 4181. An affidavit of an absent witness by whom it is alleged such facts can be shown as will prove the act done in self-defense, should be overruled unless such application shows that the defendant intended to interpose the plea of self-defense. State v. Bryant, 93 Mo. 273; State v. Pagels, 92 Mo. 300; State v. Mitchell, 98 Mo. 637; 1 Bishop's Crim. Proc., sec. 951a. In support of our contention that due diligence was not used and for that reason the defendant not entitled to a reversal on that ground, we call the court's attention to the cases of State v. Sneed, 95 Mo. 551; State v. Gamble, 108 Mo. 500; State v. Banks, 118 Mo. 117; State v. McCoy, 11 Mo. 517. (4) An instruction on manslaughter should not be given unless warranted by the testimony. In this case the evidence did not disclose such facts as would warrant an instruction of that character. State v. Horn, 115 Mo. 416; State v. Sneed, 91 Mo. 552; State v. Anderson, 89 Mo. 472; State v. Smith, 114 Mo. 422; State v. Robb, 90 Mo. 34; State v. Blunt, 91 Mo. 503; State v. Henson, 106 Mo. 66; State v. Dixon, 78 Mo. 438; State v. Rider, 95 Mo. 474; State v. Umbles, 115 Mo. 452.
On the fifth day of February, 1898, Peter Kindred, the defendant herein, shot and killed Andrew A. Alley in the town of Mercer, in Mercer county, Missouri.
At the regular March term of the circuit court of said county defendant was indicted. Afterwards on the twenty-fourth day of March, 1898, the record recites that the courthouse of Mercer county was destroyed by fire and all the papers in said cause together with the indictment against defendant were burned. At the adjourned March term, 1898, of said court a new grand jury was ordered and impaneled by the court, and on May 23, 1898, returned a new indictment for murder against defendant. This was duly served on defendant on the morning of the twenty-fourth of May. On the twenty-fifth day of May defendant filed an application for a change of venue which was heard by the court on the same day and ordered overruled. On the same day defendant made an application for a continuance which was heard and denied by the court. Defendant was thereupon duly arraigned and pleaded not guilty to the charge in the indictment. A special venire was issued returnable for May 26, which was duly served and a panel of forty jurors was obtained on that day. On May 27, a jury of twelve was selected and sworn to try the case. The cause thereupon proceeded, and on May 29, 1898, the said jury returned a verdict of guilty of murder in the first degree. Motions for a new trial and in arrest of judgment were filed in due time, heard and overruled, and defendant was sentenced to be hung on July 8, 1898. An appeal to this court was prayed and granted and leave to file a bill of exceptions by September 1, 1898, was granted. The bill of exceptions was perfected and filed on August 25, 1898.
These facts seem to be established by the record. Peter Kindred, the defendant, is a young man about twenty-two years old. He lived on a farm near the town of Mercer, in Mercer county in this State. On the fifth day of February, 1898, he left his home and went to Mercer, where he took a train for Lineville. He remained in Lineville until one o'clock in the afternoon of that day. While there he obtained some whiskey from a drugstore. He returned to Mercer about two o'clock. His subsequent movements are traced as follows: He visited a picture gallery, a restaurant and a blacksmith shop. He then went to the hardware store of Andrew and Joseph Alley in said town about 3 o'clock. It appears that prior to and at this time defendant was indebted to the firm of Alley Brothers in a small sum, for which they had obtained judgment.
The store room was about ninety feet in length. The office was in the rear end from the street or west entrance. The store was heated by a stove near the rear end. At the time defendant came into the store there were in it Andrew A. Alley in the cashier's office at work, Joseph Alley, Clint McIntosh, Mr. Ganen, Thomas Wells, James Talbott and Don. Alley, sitting about and around the stove.
When defendant entered the store he went at once to the little office in the rear where Andrew Alley, the deceased, was engaged on his books. He was heard to say to Andrew that he wanted to settle with him. Andrew reached over to get the books to look at defendant's account, whereupon defendant interrupted him by saying, "No, I want to fight it out." Andrew replied that he didn't settle his accounts that way. Defendant then said, "You don't pay your debts." Andrew replied, "You can't find a man in this country that says I owe him a dollar and didn't pay it."
Thereupon Joseph Alley got up and said to defendant "Pete, you are looking for trouble." Defendant then backed off towards the counter, with his hand in his pocket and dared Joseph out to fight. Joseph replied that he was no fighting cock and that defendant was not in a good condition to settle that day, to come back some other day. D...
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