The State v. Kloss

• Decision Date: 09 November 1893
• Citation: 23 S.W. 780,117 Mo. 591
• Parties: The State v. Kloss, Appellant
• Court: Missouri Supreme Court

23 S.W. 780

117 Mo. 591

The State v. Kloss, Appellant

Supreme Court of Missouri, Second Division

November 9, 1893

[Copyrighted Material Omitted]

Appeal from Nodaway Circuit Court. -- Hon. C. A. Anthony, Judge.

The defendant killed Patrick H. Thompson by beating him with his fist and kicking him to death. He was indicted, charged with murder in the first degree, and on trial was convicted of murder in the second degree, his punishment being assessed at ten years in the penitentiary, the lowest term of punishment provided by law for the perpetration of that crime, the trial court refusing or declining to give any instructions for a higher grade of crime than that of which defendant was found guilty.

The substance of the evidence adduced at the trial is as follows Patrick H. Thompson was an aged man some eighty years old, as testified to by Ashford, who had known him several years. He was a spectacle peddler by occupation, a cripple who used a crutch and a cane to walk with, and on the occasion in question he supported himself with his crutch, while he held the cane over his shoulder, and on it he carried a satchel which contained his small stock in trade; his little all. On February 15, 1893, about seven o'clock in the evening of that day, he was wending his way slowly along the public road which runs along the dividing line between Andrew and Nodaway counties. He had chosen the latter county as the scene of his humble labors. While he was proceeding along the road, it being a starlight night and objects quite easily discernable he was overtaken by Al. Cunningham and defendant Albert Kloss, who were driving in a buggy. They drove on to Elijah Jackson's house, near by, stopping to inquire about some colts. There Kloss, who was wholly unacquainted with Thompson, told young Jackson, who came up to the road in answer to his call, "there is an old man down there in the road, he will burn the barn down unless you let him stay at your house all night." Thereupon at defendant's invitation, young Jackson went down with him to the road to see Thompson and met him coming up the road with his crutch under his arm, a cane over his shoulder with a satchel on it. The defendant began a conversation with him by saying "Howdy do, old man, what are you doing?" Old man Thompson said: "None of your business." Defendant: "You want a night's lodging?" Thompson: "Yes." Defendant: "You can't stay." Thompson: "Do you live up there?" Defendant: "Certainly I do." Thompson: "Can't you keep me all night?" Defendant: "No, what are you going to do about it?" Thompson: "None of your business;" when defendant struck him in the face, knocking him down and kicking him in the side; about this time Cunningham appeared and asked defendant why he had struck him, when defendant said: "I have struck him down." Just then the old man started to raise his head and the defendant said: "Don't raise your head or I'll stomp the liver out of you," and he then the second time knocked him down and kicked him. The old man begged the boys to help him up and not let defendant strike him any more. He was raised to his feet, but unable to stand, or to hold in his hands his crutch or cane, was laid back upon the ground.

About this time a Mr. Marshall came down the road and some one suggested that he go and get a lantern, which he did, and when he returned defendant said "he was very sorry he had knocked him (the old man) down, and said he would not do it any more." They then attempted to get the old man up again, who, being unable to stand, reached out toward defendant to help himself up, when defendant said: "G -- d d -- n you, you can't stick your hands in my pocket," and again struck the old man and knocked him down, when all present told defendant to stop and begged him not to hit the old man any more. About that time defendant claimed to have lost his ring and the boys took the lantern and began making search for it; and when some one said: "The old man in getting in his valise," the defendant again struck the old cripple, jumped on to him and began beating him in the face and kicking him in the head. With much difficulty the four young men who were present pulled defendant off of him, and even after that, as the old man attempted to raise his head from the ground, the defendant again kicked him in the head; the defendant at the time had on a pair of heavy boots.

The testimony, except that of defendant, shows that no resistance of any character, no assault, no violent or abusive language was made, used or applied by the old peddler toward the defendant; that his assault on this harmless old cripple was unprovoked and without excuse.

The crowd dispersed, when young Jackson went home, and when his father came back home, narrated his trouble to him, and they, with some of the neighbors, returned, found the old man where the assault had been committed; they then carried him to the home of Mr. Jackson, where they bathed him, applied hot, wet cloths to his feet and finally sent for a doctor, who, upon examination, found that Thompson's skull had been fractured, a dint in his head that you could lay your finger in, his nose seemed broken and several severe bruises and cuts inflicted upon his face and head and side, from the result of which, two days later (February 17) he died. The attending physician stated that death was occasioned by the injuries inflicted by defendant. No autopsy was held on the deceased and so the extent of his injuries cannot be known. Thompson was unconscious from the time he was carried from the road to Jackson's home.

The testimony is that the assault was committed, and most of the injuries inflicted, on the north side of the road, and in Nodaway county, and that deceased died in that county. After the old man died, his clothing, valise and effects were searched and no weapons of any character were found. A warrant being issued immediately for the arrest of defendant, he could not be found, but about a week later was located and arrested in Oklahoma Territory, whither he had fled, and where he was in jail.

There was testimony adduced for the defense to the effect that, just before the defendant jumped on the old man for the last time, some one cried, "look out, he is getting his gun;" but the testimony of some of the witnesses is that the only thing uttered was, "the old man is getting into his satchel." There was also testimony that, as the cry mentioned was made, whatever it was, the defendant said, as he sprang on the old man with both feet, "God d n you, you can't draw no gun on me." But the defendant denied that he made use of any such exclamation. He also denied that he told young Jackson about a man being down the road who would burn the barn, etc., though this is positively testified to by Jackson. The defendant attempted to excuse his conduct by saying that old man Thompson told him, in response to his question, "it's none of your d n business," and shoved him and raised his hand as if he was going to strike him, etc.; but he does not deny the statement of Jackson that he told old man Thompson, "don't raise your head or I'll stomp the liver out of you," nor does he deny the other statements heretofore related. He claims, indeed, that he was acting in self-defense when he jumped on the aged, decrepit and crippled man the third and last time; that he was afraid that the poor old creature would shoot him or hurt him, at a time, too, when all the evidence shows that the old man was incapable of raising his head from the ground only for a moment, and that after receiving his coup de grace from the brutal kick of defendant, "his head dropped to the ground and he never moved his head from the ground no more." Nor did he speak afterwards.

This, in brief, was the testimony, and upon that the trial court, at the instance of the prosecuting attorney, eliminated the element of murder in the first degree from the indictment, and instructed the jury as to that offense in the second degree.

An instruction was also given as to manslaughter in the second degree. The eleventh instruction was the following:

"11. If the jury believe from all the evidence that, at the time the defendant struck and kicked the said Thompson (if you believe from the evidence that defendant did kick the said Thompson), and inflicted the injuries from which the said Thompson afterwards died, the defendant was acting under a violent passion, suddenly aroused by reason of Thompson having used toward defendant insulting and abusive language, and having shoved or struck him with his hand or stick, or by reason of a reasonable apprehension upon the part of the defendant that Thompson was in the act of drawing some weapon upon him for the purpose of killing him or inflicting upon him some personal injury, you cannot find the defendant guilty of murder, for, in that case, the law presumes that such injuries were inflicted without malice, but by reason of such passion. On the other hand, although you may believe that defendant struck and kicked the said Thompson while in a violent passion, suddenly aroused as above stated, yet, if you shall further believe, from all the evidence, that such injuries to Thompson were inflicted by the defendant and that such injuries were not necessary to the self-defense of the defendant, as explained in other instructions, you will find the defendant guilty of manslaughter in the fourth degree, so stating in your verdict, and assess his punishment at imprisonment in the penitentiary for a period of two years, or at imprisonment in the county jail for a period of not less than six months nor greater than one year, or by a fine of not less than $ 500, or by both a fine of not less than $ 100 and imprisonment in the county jail not less than three months."

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