175 Ky. 46 | Ky. Ct. App. | 1917
Opinion op the Court by
Affirming.
The appellant, Mollie Allen, appeals from a judgment of the Laurel circuit court, whereby she was adjudged guilty of the crime of voluntary manslaughter and to imprisonment in the state reformatory for a period of not less than five nor more than six years. The indictment against her, accused her and her husband, Henry Allen, and other parties to the grand jury unknown, with the murder of Maggie Allen. The .appellant and her husband, Henry Allen, were brought before the court and having each asked a separate trial, the Commonwealth’s Attorney elected to first try Henry Allen, and his trial resulted in a judgment by which he was found guilty of murder and his punishment for the crime fixed at imprisonment for life. Afterward the trial of appellant occurred, with the result as above stated. The only error relied upon for a reversal of the judgment is that the court erred in refusing to grant a new trial.
First. Because two of. the jurors were biased against the appellant; that one of them had formed and expressed an opinion adverse to the appellant before he was accepted upon the jury, and another of the jurors was related by marriage to Lee Weaver, who was associated
Second. Because the verdict of the jury was not sustained by a sufficiency of evidence and was flagrantly against the evidence.
Other grounds for reversal are urged in the brief of the attorney for appellant, but the above stated are the only grounds which were relied upon by her in her grounds for a new trial filed after the rendition of the verdict and judgment and are the only ones which can be considered upon this appeal.
(a) In support of the grounds for a new trial the appellant filed the affidavits of Lottie Adams, George Allen, Alexander Allen, Ben McFarland and Elmer Joseph. It is stated in the affidavit of Lottie Adams, that previous to the trial of appellant, Everett Acton, a juror, who presided in the trial, came to her. mother’s home to sell to her mother or brother a mail box, and while there stated in the presence of herself, mother and brother, that Henry Allen and appellant were the parties, who had killed Weaver and Maggie Allen, and that both ought to be electrocuted; that they had been keeping a bawdy house and that it was a subject of wonder that other crimes had not been committed about their place; that appellant was the ringleader and the guiltier of the two. The affidavit of George and Alexander Allen stated that at a time and place other than that mentioned by Lottie Adams, the juror, Action, had made a statement to them similar to the one testified to by Lottie Adams. The affidavits of Ben McFarland and Elmer Joseph stated that the juror had made similar expressions in their presence at a stable in London. To combat the force of these affidavits, the Commonwealth’s Attorney filed the affidavit of the juror, Acton, in which he denied that he had ever had any conversation with Lottie Adams, George Allen, Alexander Allen, Ben McFarland or Elmer Joseph, or in the presence or hearing of any of them, in regard to the guilt or innocence of the appellant, and denied that he had made use of the language, either in form or in substance, attributed to him by these parties in their affidavits, and further stated that he was not acquainted with the circumstances of the crime for which the appellant was tried, and did not have
(b) In the grounds for a new trial it is stated that Bobert Seet, one of the jurors, was an uncle by marriage of Lee Weaver, who was killed by some one on the same -night upon which Maggie Allen was killed, and hence, that it was to be inferred, that the juror entertained a bias against the appellant. It does not, however, appear
(2) There was evidence heard, which showed that Maggie Allen, the deceased, was a divorced wife of Henry Allen, the husband of appellant; that appellant and the deceased had had several personal altercations growing up out of the fact that one was the discarded wife of Henry Allen and the other his then wife; that in one of these altercations the appellant struck the deceased and Henry Allen being present, offered the appellant a pistol with which to shoot the deceased; that appellant had stated that she had upon one occasion whipped the deceased and had on other occasions been heard to threaten the deceased with violence and with death; that on the night of the'homicide appellant and her husband, without any reason being given therefor, except that Lee Weaver requested them to do so, accompanied Weaver and a woman named Burdine and a man named Joseph, to the dwelling of Mary Burdine, where deceased was then residing and appellant inquired for the deceased; that appellant and her associates were under the influence of intoxicants, and her husband procured whiskey at Mary Burdine’s; that they then went near to the dwelling of Ben McFarland, where deceased then was, when the appellant and the Burdine woman wrent to the house of McFarland and made inquiry for deceased; that appellant and her associates then went into the dwelling of McFarland, but deceased left the house from fear, before she was seen by appellant or any one with her; that appellant and those with her left McFarland’s and returned to the Burdine house, and about fifty feet from the door came in contact with the deceased, where a pistol was heard to be fired and deceased was heard to scream, “Lord, have mercy upon me, Henry.” The corpse of the deceased was found
The judgment is, therefore, affirmed.