Year: 1876

district Court of Atehison County Charles Smith
the his mother His real father is unknown to the
reporter but his sepatber certain coored person
named Jack Cansten Defendants mother had gone
West to Cheyenne to work for Black Killers, and grow
up with country like leaving Charles in the tender
mercies of Jack Cansten also leaving some seven or
eight head hogs that she had earned by working be-
fore going Cheyenne. The killing season came on
Jack Cansten by the aid and assistance of his
dutifu stepsOn killed the hogs and made bacon of the
hams Jack and Charley lived together peaceably until
just mid winter eating of these hogs from the same pot
Then Jack concluded that Charley very worthless
Niger and kicked him forcing him to sleep in brick
kns wood sheds &C. At length Charleys bowels yearn
ed for Of his mothers meat and he went and pulled
staple from the lock of the and entered
and did eat and moreover he took hams and traded
them to a very honorable gentleman named Wichita
Bill" Jack Cansten becoming possessed Of this nforma
ton greatly ROTH and swOre out warrant for the
arrestOf his recreant stepson for


Bwglarrrrrry,
Well the for hearing at the term sfOre
said and the facts set out aforesaid to by
Charles Smith, wormed reluctantly out OF Jack Can
stes, cross-examination The great question was,
whether boy who turned out Of his mothers home
by stepather and who returned at night and pried of
his mothers lock which enclosed his mothers meat she
not eomplainingJ guilty of the police rattle crime
above expressed.


As the information would say nothing of these rela
TONS the question of crime crime could not arise
until the Court should charge the law to the jury.


The Court had all through the trial wgged his head
in the plane of the horizon any suggestion that the
defendant could not be convicted Of burglary for break
ing open attached to the only home he had
earth and taking therefom meat to which he had
| show of title


There men in the penentiary to-day, sent there
n P 20 Sss est rs m man % |os n
guilty OF crime-RePorteri


The Court asked to give the following instructions:


The jury are instructed tina feloniSus intent sp in
Tense And if the defendant took the said hams under
that he had right to take them under an authority
given by his mother, the jury will acquit
| MIR rouse! This neither marked given or
refused by the Judge.l


If the defendant was a member Of the family of the
prosecuting witness and had been living the premises
and while so living on the premises, broke open the
smoke house of the prosecuting witness then the
ense is most nothing than petty larceny you
find the vane of the hams to be less than twenty dollars


Refused, defendant excepting. p. L. Hubbard Judge.


Possibly the Judge intended the refusal written to
this instruction to extend the other both being the
same sheet


If the jury have in their minds any reasonable doubt
of the guilt of the defendant, they will acquit him.


Refused by being included in the general charge. P.
L. Hubbard, Judge.


The general charge is remarkable a document and
is much like turkey the State and buzzard the de-
feDdant all the time like voting the LecomptOn
Constitution where the voter simply permitted to
vote for the Constitution with slavery for the Consti
tuition without slavery, that copy entire:
Gentlemen Of the Jury:


second degree in breaking and entering the dwelling of
the prosg witness Jack Cansten ecton 6s) he is also
cha rged with Burglary in the third degree Is descIb
ed in section Co. gen statutes. and it is your duty
carefully examine and weigh the evidence against him.
and if convinced reasonable men, and beyond
reasonable dout that the defendant did unawfully.
e OniOusy and burglarousy in section &C. above read
emf the Of he
ing witness in the night time with the intent to steal
the urT % Sp bm ,e % Is ne 1&, m &
second degree but if you further lind that the crime
day time then you will only convict him Burglary in
the 81 degree as is described in section g. and you will
specify your verdict parcularc grade of offence Of
which you find the def uilty but you find there
reasonable donb in minds to which grade of Of
fence he's guilty you will give defendant benefit
of this doubt and only convict him of the grade
of which satisfied beyond reasonable doubt he
is guilty and if there reasonable doubt in your minds
as to his guilt of any crime then you will give him the
benefit OF this doubt and acquit him altogether given


you lind the defendant Not Guilty Of the crime Of Bur
glary in either degree but that he did the
carry described property of the value of 90 TWEEN
y dollars the same being the property Of the prosecuting
section tsO) given. p L. Hubbard, Judge.


The jury having had their attention clearly called
to the matter in dispute and there being ques
but that harles Smith got away with the hams broug
in verdict of guilty Of burglary in the third degree





Court they might just well have found him guilty
burglary in the second degree, marks the humanity
that jury at high degree The defendant beiug found
guilty availed himself of the services of that most
distinguished of lawyers, William Redwood Smith. A
motion for a trial made Hon b. p. waggener
lent friendly and helping hand After argument tho
Court expressed himself satisfied that Charles Smith
ought to have trial. and he got it. No for
trial assigned that involved in the first
trial. except that the Court did think the crime
burglary.


SYLLABUS.


1t is the duty of the jury determine whether
fendant charged with burglary did uBawuly elOnious
E and burgaousy break and enter the premises of the
jury find that defendant broke in according section g.
felOniously unlawfuly and burgarioesly in the night
time with intent to steal therefrom then you should con
H. But it, after knowing this you further find that the
done in the day time, you will in addition find him guilty
of burglary in the ID degree described in Section
high grade when they should convict Of lower
one and if there be doubt the prisoners guilt
" lad living with his mother husband, and making
his home with him. guilty Of burglary If he breaks
though honestly believes he has the authority and
license of his mother to take meat when he needs it.
If in the day time it Is burglary i6 the degree But il
he took meat he is at all events guilty of larceny.
defendants belief is his legal right to take property
The party who takes property which in NAV law on fair
Ington STATE VS. Agesfor State va Brill State VS. Den.
mis-, State ShOre-cases decided by this CourtJ


VI The difference between trespass and felony has
existence in this Court does this Court recognize
any well defined boundary between trover and larceny
In the defendant converts property which is not
his to his own usei in larceny he does the same
thing. The felonious intent and Gnimus randi being
deemed, in this Court wholly immaterial


VII. Where the Court discovers after verdict that
testimony Of the kind offered by the defendant
be produced, to leave reasonable doubt In
the minds of reasonable Court that the defendant had
authority to sell his and his mothers bacon, which
q stepfather claims his own the Court properly
grant a trial
VIII. Under all ordinary circumstances, trial in
sueb should only be granted upon condition that
W. W. Guthrie the Atchison and Nebraska Railroad
Company other soulless corporation pay the COSTS
where the defendant is wholly unable to pay
but the defendant in this being boy the Court
departs from the established rule and grants trial
without any order as to cOets-
All the Justices coneurring


DAVID AULDs OvERCoAT.
STATE OF KANSAS)