State v. Brown

21 Kan. 38

• Court: Supreme Court of Arkansas
• Decided: July 15, 1878
• Status: Published

Opinion

The opinion of the court was delivered by

Valentine, J.:

x indictment m0url0erdin0the fiistdegiee. This was a criminal prosecution. The defendant was tried, convicted and sentenced as for murder in the first degree; but he claims that it was done erroneously, as the indictment upon which he was tried did not charge murder in the first degree, but at most, only murder in the second degree. We are inclined to think that the defendant is correct. The indictment is probably sufficient as an indictment for murder in the second degree, but we hardly think it is sufficient as an indictment for murder in the first degree. It does not charge that the killing was done by means of poison, or by lying in wait, or in the perpetration or attempt to perpetrate any felony; nor does it charge that the hilling was done deliberately or premeditatedly. It was intended to be an indictment charging a deliberate and premeditated killing, but it failed in charging the deliberation and premeditation. It charges that the defendant, William Brown, and two others (John Taylor and Thomas Craig), killed two persons (William Bledsoe and Jacob Bledsoe) with pistols and revolvers; but it does not charge that they did the killing with any .deliberate or premeditated intention of killing the deceased. The deliberation and premeditation charged in the indictment do not go to the killing, but merely go to the acts which finally and eventually resulted in producing death. Stripping the indictment of everything except that which might be supposed to charge deliberation and premeditation, and changing it so as to make it an indictment against the defendant alone for killing one of the Bledsoes with one pistol, and it would read substantially-as follows: The defendant deliberately and premeditatedly, with a pistol charged with gunpowder and six leaden balls, whjc}i pistol he in his right hand held, of deliberate and premeditated malice, did shoot against the body of Bledsoe, and thereby gave to Bledsoe one mortal wound, of which mortal wound Bledsoe died; and the defendant him the said Bledsoe,“in the manner and by the means aforesaid, unlawfully, feloniously, willfully, wickedly, purposely, maliciously, and with malice aforethought, did kill and murder.” The first part of the indictment charges substantially that the defendant deliberately and premeditatedly committed an assault and battery upon Bledsoe by shooting him with a pistol loaded with gunpowder and balls; but it does not charge that the defendant at the time had any deliberate or premeditated, intention, nor indeed any intention, of killing Bledsoe. It ■substantially charges that he deliberated .upon and premeditated the shooting, the assault and battery, but it does not ■charge that he deliberated upon or premeditated the killing. From anything appearing in this part of the indictment, the ■shooting and the assault and battery may have been committed with the intention merely of wounding Bledsoe, either •severely or slightly. There was nothing in the' mode of killing that would authorize even the slightest inference that the defendant ever entertained a deliberate or premeditated •design, or 'any design, to produce death. The indictment does not show whether the pistol was large or small, whether the balls were large or small, whether there was much or little_gunpowder in the pistol, nor on what part of the person of Bledsoe the wound was inflicted, or intended to be-inflicted. ■Of course, the failure to state these things, does not render the indictment insufficient; but we mention them merely for the' purpose of showing that this part of the indictment does not' ■even inferentially state that the killing was done deliberately or intentionally. The latter part of the indictment we have -quoted, verbatim. While it alleges- that the defendant “ unlawfully, feloniously, willfully, ■ wickedly, purposely, maliciously, and with malice aforethought, did kill and murder” Bledsoe, yet it does not allege that he did it either deliberately or premeditatedly. If this part of the indictment had charged a deliberate and premeditated killing, then, under ■the authority of Smith v. The State, 1 Kas. 365, the indictment would have been sufficient-as an indictment for murder in the first degree. But as neither this nor any other portion •of the .indictment charged that the killing was done with any •deliberate or premeditated design to kill, or by means of poi.son, or by lying in wait, or in the perpetration or attempt to perpetrate some felony, the indictment cannot be.considered as a'good indictment for murder, in the first degree. (State v. McCormick, 27 Iowa, 402; State v. Watkins, 27 Iowa, 415; Bower v. The State, 5 Mo. 364; State v. Jones, 20 Mo. 58; State v. Reaky, 1 Mo. Appeal, 3; Fouts v. The State, 8 Ohio St. 98; Kain v. The State, 8 Ohio St. 306; Hagan v. The State, 10 Ohio St. 459; Loeffner v. The State, 10 Ohio St. 599.)

, Indictment, not insufficient. The indictment in this case charged that the killing was done by John Taylor, William Brown, the present defendant, and Thomas Craig, with pistols and revolvers, “'which said pistols and revolvers the said John Taylor, William Brown and Thomas Craig then and there in their right hands held.” The defendant now,, and for the first time, claims that the indictment is insufficient, because, as he claims, 1 J three men could not hold pistols and revolvers in their right hands and inflict therewith a mortal wound on each or either of two different persons, and cites, as authority therefor, The State v. Gray, 21 Mo. 492, and The State v. Steeley, 65 Mo. 218. The authorities he cites are not in point. There is certainly nothing impossible in three men holding three or more pistols or revolvers in their right hands and therewith inflicting wounds, and the authorities quoted do not say that there is. It would not even be impossible, however improbable it might be, for three men to hold one and the same pistol or revolver in their several right hands, and therewith to inflict a mortal wound, and therefore no court could properly hold that an indictment charging such a thing would necessarily be insufficient. (Coates v. The People, 72 Ill. 303.) Besides, our statutes provide that “any person who counsels, aids or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were a principal;” (Gen. Stat. 839,. §115;) and as construing this kind of statute, see case last cited.

The defendant claims that the court also erred in excluding certain evidence offered by the defendant. The killing was done in this case on April 1, 1865, in the southern part of Greenwood county, on what was then the Osage Indian reservation. Several 'hundred Indians were at that time camped in the vicinity of where the killing was done. The theory of the defendant is, that the killing was done by the Indians from revenge, because, as they believed, the Bledsoes and others acting with them had killed several Indians, and had stolen a large number of ponies and other property belonging to the Indians. The defendant,was present at the time the killing was done, and immediately afterward stated that it was done by Indians. There was also evidence in the case showing directly and positively that Indians were also present at the time the killing was'done, and that the killing was done by them. The state introduced a witness by the name of Cottingham, who testified among other things as follows:

“He (Cottingham) was at Brazil’s trading-post some eight days prior to the time the Bledsoes were killed; that the Bledsoes were then under arrest, charged with having killed some Indians and taken from them some horses and other property; that there were several hundred Indians camped at said Brazil’s post at the time; that witness saw defendant and others talking to the Indians at that time and offering them, money and property if they’would kill the Bledsoes; that .'the night afterward one Matthews under arrest with the Bledsoes, charged with being gtiilty of the same offense with which the Bledsoes were charged, turned state’s evidence, and told where the Indians (the Bledsoes were charged with killing) had been thrown into the river; and that after Matthews turned state’s evidence, some one told the Bledsoes if they had anything to say they had but a few minutes to say it in; that the Bledsoes were afraid the Indians were going to kill them; that they wanted some one to pray for them; that the father of- witness who was a preacher did pray for them, and that immediately after the excitement all quelled down, and that the Indians manifested no further disposition to injure the Bledsoes; that they said if the whites wanted such men killed, they might kill them themselves, that they, the Indians-, would not kill innocent mert.”

This evidence was evidently introduced for the purpose of showing — 1. That the defendant had a desire that the Bledsoes should be killed; and 2. That the Indians had no such desire; that the Indians believed that the Bledsoes were “innocent men;” that they had not killed Indians nor stolen Indian ponies or Indian property. The defendant offered to rebut this testimony by introducing other testimony, showing that the Indians could not have believed that the Bledsoes were “innocent men;” but the court below ruled it out. Said other testimony was as follows: The defendant introduced a witness by the name of Cantrell, who testified among other things that he was present at the time that Matthews made his said confession, and that he had the Bledsoes in his charge. The defendant then offered to prove by this witness that “at the time Matthews confessed and stated in the presence of the Indians and the Bledsoes, that he (Matthews) and the Bledsoes had murdered the two Indians for whose murder they were under arrest, and had thrown their bodies into the river at a point designated by said 'witness, and that one of said Bledsoes then said to Matthews, ‘You did not tell us not to kill them,’ and that Matthews replied, ‘Yes I did, by God — you know I did,’.and that thereupon said Bledsoe sank back on a seat and covered his face with his hands and remained silent.” But the court refused to allow this evidence to be introduced.

The defendant also introduced himself as a witness, and offered to testify that he was present at the time that Matthews made his said confession; “that there were a great many Indians present, and that the Bledsoes then confessed they had recently been guilty of murdering Indians.” But the court refused to permit him to so testify.

may be shown. We think the court below erred in excluding this evidence. It was certainly proper rebutting evidence. If it was competent for the state to show that the Indians had no motive or desire to kill the Bledsoes, it was ^ 1 certainly competent for the defendant to show by rebutting evidence that they had such a motive. If it was proper for the state to show that the Indians believed that the Bledsoes were “innocent men,” and had done the Indians no harm, it was certainly proper for the defendant to show that the Indians could not have believed so, and that they must have believed that the Bledsoes killed some of their comrades and stole some of their property; and proof of the acts and confessions of the Bledsoes in the presence of the Indians at the time that Matthews confessed, was competent evidence.

The state also introduced a witness by the name of Pinney, •who testified, among other things, as follows:

“A short time before the killing was done, Eedmond, who lived about four miles down the river, rode up to the defendant Brown’s house, called Brown out, who was a physician, and told him that he wanted him to come down to his house to see a sick child; that Brown told him he would go; that he came in, put on his hat and coat, appearing a little excited; his wife told him he was leaving his medicine case; he said he would not need it; that thereat Brown and Eedmond rode off together; that about an hour after, he heard twelve 'shots in the direction of where the Bledsoes were found dead next day; that about three-quarters of an hour or ,an hour thereafter, defendant returned and said as they were' moving the Bledsoes from Baxter’s they were attacked by Indians, and the Bledsoes were killed.”

5. Conversation: remaifúferWD’ thereof may te. The other evidence shows that the defendant, after leaving his own house with Eedmond, went to Baxter’s, near by where the Bledsoes, who were still under arrest, were kept and guarded, and after some converga(;¡on the defendant and the guards with the Bledsoes removed from Baxter’s with the intention, as the defendant claims, of going to a place of greater safety, but with the intention on the part of the defendant, as the prosecution claims, of murdering the Bledsoes; and soon after they left Baxter’s the Bledsoes were killed by Indians, as the defendant claims, but by the defendant and his assistants, as the prosecution claims.

The foregoing testimony of Pinney was evidently introduced for the purpose of making it appear to the jury that ■ the defendant went to Baxter’s under the false pretext that he was going to Bedmond’s to "attend a sick child. For the purpose of rebutting this unfavorable view of the testimony, tlie defendant introduced himself as a witness, and offered to _ testify with reference to the whole of the conversation between himself and Eedmond had at the time when Eedmond “called him out” of his house as aforesaid, but the prosecution objected, and the court below sustained the objection. The defendant offered to testify that Redmond, in this same conversation, told him “that a large body of Indians were in the vicinity for the purpose of killing the Bledsoes,” and that it was this information “which caused him to go at once to Baxter’s.” But the court excluded the testimony. The defendant “testified that at the time his wife told him he was leaving his medicine he knew he was not going to see a sick child, but was going to Baxter’s,” and going for the purpose, as he offered to testify, of persuading the Bledsoes to leave Baxter’s, and go to a place of greater safety. We think the court below erred in excluding the defendant’s evidence. It was simply proof of a part of the same conversation, a part of which the prosecution had already introduced evidence of, and it tended to rebut the unfavorable inference which the prosecution undoubtedly desired the jury to draw from that portion of the conversation which the prosecution had already given to the jury.

Because of the errors above mentioned, the judgment of the district court will be reversed, and a new trial awarded. The appellant will be returned from the penitentiary, and delivered over to the jailer of Greenwood county, to abide the order of the district court of that county.

All the Justices concurring.