129 Ky. 255 | Ky. Ct. App. | 1908
Opinion op the Court by
Affirming.
'Appellant was indicted in the Rockcastle circuit court for the murder of William Hays. On the trial the jury, by their verdict, found him guilty of voluntary manslaughter, and fixed his punishment at confinement in the penitentiary 18 years. Judgment was thereupon entered in conformity to the verdict. Appellant was refused a new trial by the circuit court, and by this appeal, seeks a reversal of the judgment of conviction.
Appellant killed Hays by shooting him with a shotgun at the latter’s residence. Although but 15-years of age at the time of the homicide, appellant had become grately infatuated with the wife of deceased, who was 25 years of age and the mother of three children. She was evidently a lewd woman, and had maintained an improper intimacy with appellant for at least a year before the homicide. She had twice left her husband, and during one or both of these separations became an inmate of a bawdy house. By correspondence and assiduous personal attention of an affectionate character, she fed appellant’s passion until it became his habit to visit her two or three times a week for a year before he killed her husband, -Dur-. ing and between such visits she furnished him with cheap novels and other unwholesome reading matter, of the “Buffalo Bill” variety, which could not in any way have profitably ministered to his intellectual or
Prom the foregoing outline of the evidence it will be seen that of the Commonwealth conduced to prove that in shooting deceased appellant was guilty of willful murder, while that of appellant tended to prove that the shooting was excusable on the ground of self-defense. It may be remarked, however, that the fact that the shot from áppellant’s gun entered the lower side face and heck of deceased would seem to support the testimony of the- Commonwealth’s witnesses that, when shot, he was warming his hands at the stove, and not looking at appellant. If, as claimed by appellant, he took the life of deceased to save his own, the latter’s attack upon him must have been provoked by jealousy arising from appellant’s improper intimacy with his wife. Upon the other hand, if appellant took the life of deceased without justification, jealousy doubtless furnished the motive for the- homicide, and the act was therefore murder, because-maliciously committed. In view of the evidence contained in the record, appellant has in our opinion no right to complain of the verdict. His youth, and the
We will only consider such of the grounds urged in the circuit court for a new trial as are now relied on by appellant for a reversal of the judgment appealed from. The errors assigned are four in number: (1) That the circuit court failed to appoint a Commonwealth’s attorney pro tern, to act in behalf of the Commonwealth in conducting appellant’s trial. (2) That employed counsel was improperly permitted to make the closing argument to the jury. (3) That the county attorney and employed counsel were allowed to make in argumnt to the jury improper and inflammatory 'statements that were prejudicial to appellant’s substantial rights, (f) That incompetent evidence was admitted for the Commonwealth in rebuttal.
As to appellant’s first contention, it may be remarked the record shows that the regular Commonwealth’s attorney was disqualified to engage in the prosecution of appellant by reason of his employment by the latter, before his election as Commonwealth’s attorney, to defend him for killing deceased. The Commonwealth was therefore as fully deprived of that officer’s services in appellant’s case as if he had been absent. Indeed, in contemplation of law he was absent. The Commonwealth, however, was represented throughout appellant’s trial by the county attorney, who conducted the examination in chief of the State’s witnesses, made an argument to the jury, and properly performed such other duties as are required by law to be discharged by the Commonwealth’s at
"We are aware that much may justly be said of the danger of intrusting the prosecution of criminal cases too much to employed counsel, and we do not mean to be understood as holding that either the courts or Commonwealth or county attorneys should be permitted to turn over the prosecution of criminals to those who are under no responsibility to the State, but the right of employed counsel to assist in such cases has long been recognized, and théir assistance may be accepted by official prosecutors of tlie Commonwealth charged with the duty of enforcing the law. Obviously the Commonwealth’s attorney is the representative of the State in all prosecutions for violations of its criminal and penal-laws, but, under the law, the county attorney is not less so, and his responsibility to the law, the court s,and the people is just as great. Both should be honest, fearless, and impartial in the performance of official duty, and as far removed from
The second contention of appellant is not well taken. This court will refuse to reverse a judgment of conviction in a criminal ease upon the ground that employed counsel was permitted to make the opening statement or close the argument, if it appears, as in this case, that the trial was otherwise properly conducted, and the defendant’s guilt is reasonably certain. Bennyfield v. Commonwealth, 17 S. W. 271, 13 Ky. Law Rep. 446; Roberts v. Commonwealth, 94 Ky. 449, 22 S. W. 845.
The fourth contention, relating to the admission for the Commonwealth of evidence in rebuttal, is equally untenable. The testimony was furnished by several witnesses, and was as to the location of the body of deceased immediately after the killing, location of blood spots, and the fact that no arms were found upon his person. Much of this testimony might have been introduced in chief, but it' was made necessary and competent in rebuttal by the testimony of appellant, which brought out new particulars as to these matters, and besides, differed in many material respects from that of other witnesses introduced in chief by the Commonwealth. The testimony in question
Being- satisfied that the record is free from prejudicial error, and that appellant had a fair trial, the judgment is affirmed.