The State v. Kyles

• Decision Date: 19 February 1913
• Parties: THE STATE v. GORDON KYLES, Appellant
• Court: Missouri Supreme Court

153 S.W. 1047

247 Mo. 640

THE STATE v. GORDON KYLES, Appellant

Supreme Court of Missouri, Second Division

February 19, 1913

Appeal from Livingston Circuit Court. -- Hon. Arch B. Davis, Judge.

Reversed and remanded.

Lewis A. Chapman for appellant.

Elliott W. Major, Attorney-General, and Campbell Cummings, Assistant Attorney-General, for the State.

BLAIR C. Roy, C., concurs.

OPINION

BLAIR, C. --

From sentence of death imposed by the circuit court of Livingston county defendant appeals. John Watts, the deceased, and defendant were and for years had been intimate friends, and that friendship, according to the evidence for both State and defense, had suffered no previous interruption.

Deceased his wife and one Urton lived in a house on Third street, in Chillicothe, and defendant lived some two or three blocks distant. Deceased was a butcher, conducting no establishment of his own, but accepting employment in killing hogs and cattle for others as opportunity offered. Defendant at times engaged in the same business and he and deceased frequently worked together.

On the day of the killing defendant, Urton, deceased and the latter's wife were at the Watts home and had been drinking a mixture made of water and alcohol which deceased procured and his wife prepared for consumption. None of the party seems to have been very much intoxicated, however, if Mrs. Watts is to be believed. During the afternoon Urton and deceased had a difficulty over some coal Urton had picked up along the railroad and wanted to sell to one Elliott. A struggle or scuffle between the two ensued but neither was injured and Urton left the premises. There is evidence deceased was angry. Later a corn-knife belonging to Urton was found in the room, but deceased's wife seems not to know when or how it got there, though she admits she removed the weapon after her husband was killed.

After Urton's departure, according to Mrs. Watts's testimony, deceased and defendant engaged in a friendly scuffle from which they desisted when she suggested they might knock over a lamp or table. Immediately thereafter, she says, defendant left the house, taking with him a small rifle and a butcher knife used for killing hogs. Defendant had asked to borrow the knife for use the following day, but deceased had declined to lend it. With these defendant left and went west toward the business part of the city. Deceased went out the back door and around the house, following defendant out upon the sidewalk in front and called to defendant, who was proceeding westward at some distance, to come back. After being called two or three times defendant retraced his steps to where deceased stood at a point some twelve feet west of the front gate to the Watts premises. Deceased's wife, at this juncture, was standing at the front doorway of the house, about twenty-five feet from her husband and defendant. An electric light almost directly in front of the house enabled her to see what occurred. She says her husband and defendant conversed there, but she heard no angry word, saw no struggle and does not pretend she saw a blow struck by either. In a few moments defendant turned away and again walked westward, and after he had proceeded some distance she says she heard her husband say, "Gordon, come back," and a moment later she testifies he said, "My God, Gordon stabbed me." Another witness for the State testified he saw defendant walking along the sidewalk about seventy-five yards west of deceased, and heard the latter call defendant and saw defendant turn and go back to where deceased was waiting for him. Witness walked on toward town and soon defendant turned and ran from where deceased was, crossed the street and caught up with witness and he then noticed defendant had a rifle in his hand. A gentleman in front of the two attracted defendant's attention and defendant asked who he was. Witness told defendant "not to shoot that man, that he had nothing to do with their trouble." Defendant went on west, crossed to the south side of the street and walked on away.

When defendant started away from where he and deceased had stood, the latter "broke out in a cry and began to call him to come back." Witness did not hear what was said between the two; could hear the sound of voices but could not understand what was said. When defendant left deceased the witness heard a woman calling for help. Witness saw no struggle, no blows. This witness places Mrs. Watts out on the sidewalk near her husband at the time the latter first called defendant to come back and says she was urging the former to come in and have no trouble. These two are the only eye witnesses to anything connected immediately with the killing and neither pretends to have seen defendant stab deceased.

The only wound upon the body was a knife wound in the leg. The wound of entrance was almost exactly the width of the knife blade, the weapon having been driven straight to the femur and the point having severed the femoral artery. Death resulted from loss of blood in about an hour and one-half or two hours after the stabbing occurred. The wound on the deceased's leg was about three or four inches below the hole cut by the knife in deceased's trousers.

From the point on the sidewalk where the witnesses say deceased was standing when defendant returned to him, after being called back, to the bed upon which deceased fell, there was a trail of blood. Defendant's hat was afterwards found in the house. The knife and rifle were found in the western part of Chillicothe and there was evidence that about an hour after the stabbing defendant was seen, apparently very drunk, in that part of the city. He was arrested at his home nearly two hours thereafter. There is some little evidence of furtiveness in defendant's manner of approaching his home, but the only witness who testified in regard to this says defendant knocked on the door two or three times and demanded to be let in, but, receiving no reply, struck a match, stood there a little while, and then "came back past the west side of the house and as he got to the southwest corner he made a dive out where there is some brush there . . . and came right out toward the yard fence." Witness, seeing defendant would discover him, started toward his own home and as he passed defendant the latter "ran his hand into his side pocket." Witness said "Good evening" and defendant said "Hello, is that you, Uncle Dave?" Witness thereupon covered defendant with his rifle and said, "Gordon, come go with me," to which defendant responded "All right."

At this time two blocks and a half away at deceased's residence a somewhat large and excited crowd had gathered. As witness and his prisoner proceeded westward along the street defendant fell down several times and acted as if drunk. He was bareheaded and unarmed.

The information charged not only murder in the first degree but also charged defendant had been previously convicted of assaulting one Lina Kiles with intent to kill her. The judgment of conviction of that assault was in evidence as was a certificate of Warden Andrae to the effect defendant had been incarcerated in the penitentiary, served the term adjudged and had been discharged.

The evidence for the defense disclosed that deceased and defendant had been together most of the day from eleven a. m. until the killing took place and that they were at all times observed to be in a good humor. Sometime after Urton had brought Elliott to the Watts home to close the sale of coal and failed, Urton and deceased were seen in the street in front of the house "quarreling and fussing" and deceased seemed very angry.

There was some evidence deceased and his wife differed as to permitting Urton to continue living with them, deceased opposing it. According to defendant's testimony there is reason to believe deceased was jealous of Urton.

Defendant testified as to being with deceased various times during the day and to deceased having ordered Urton to leave the place. This last resulted in a difficulty between deceased and Urton in which blows were struck. Defendant and Mrs Watts separated the combatants, the former pushing deceased into another room and the latter attempting to hold Urton. Sometime during the altercation Urton secured a corn-knife. Urged by Mrs. Watts, Urton left and as he did so deceased seized a rifle and attempted to follow. Defendant took the weapon from him and ran out of the house and went westward on Third street. According to defendant deceased followed and called to him to come back and bring the rifle, finally threatening to have him arrested for robbery if he did not do so. Defendant says he then returned and, at deceased's request, re-entered the house. Deceased said to defendant he had considered him his friend and defendant answered him he was his friend. Defendant testified deceased replied, "No, you ain't; you have deceived me. I have known you a long time and you went against me for George Urton, the son-of-a-bitch. I didn't get to get Urton; I will kill you." Deceased closed the door and stood against it and when asked to let defendant out responded, "They'll take you out." Defendant says he retreated into the living room and deceased followed and assaulted him with the butcher-knife, the first thrust cutting defendant's sleeve and inflicting a wound on his arm, the effects of which seem to have been yet visible at the time of the trial. The cuts in defendant's clothing and arm were...