193 Ky. 687 | Ky. Ct. App. | 1922
Opinion of the Court by
Affirming.
The appellant, John Bailey, was tried in the Rockcastle circuit court under an indictment found and returned against him by the grand jury of Knox county in which
Under ground 1, it is seriously contended that portions of the testimony of Luther Hatton and B. P. Walker, both of whom were introduced by the Commonwealth, are greatly prejudicial to the substantial rights of the defendant, and counsel insists, with great emphasis and seeming confidence, that the complained of testimony is of such a nature as compels this court, under rules of criminal practice, to reverse the judgment. Taking up first the complained of testimony of the witness, Hatton, the record discloses that the deceased, on a late afternoon train the day before he was killed, went to Manchester on a business mission, and on that train was James Bailey, the brother of the defendant, who did not testify in the case, but, according to the testimony of defendant, his brother came on that train to Fount, the home of their father, where defendant was living, to pay the family a visit, but he tarried but a short while and went back on the next southbound train towards Barbour-ville to a station called. G-irdler, where he spent the night and returned the next morning in time to catch the same train back to Barbourville upon which deceased was ex
The witness, Walker, was the sheriff of' Knox county and saw the body of the deceased shortly after he was killed and observed his clothing as well as his body and the bullet holes made therein. On the witness stand he was permitted to explain the location of the wounds in the body and to take the clothing and compare the holes therein with the wounds in the body. Incidentally he stated that “one bullet went in here and came out there,” etc., but in most, if not all, instances he explained the reasons for his statement as to the direction the shots were fired and gave the facts upon which his statements were based to-wit: the clothing with the holes therein, was exhibited to the jury for their inspection. Under the circumstances the opinion of the witness as to the points of entrance and exit of the various shots fired into the body of the deceased could not possibly have influenced the jury prejudicially against appellant, for they had before them the very facts upon which the opinion of the witness was based, and which opinion corresponded with all the testimony of all the eyewitnesses to the shooting except that of defendant, if we should concede (but which we do not determine either way) that .the testimony was technically erroneous we would still feel unauthorized to reverse the judgment therefor in the light of all the proven facts and circumstances in the case. As illustrating the absence of merit in the argument it may be stated that one of the chief questions propounded td the witness and of which the strongest complaint is made was number 100, and it is in this language: “Now, then, will you take the clothing there and point out the holes, if there are any there that correspond with the wounds on the body, lower down on the body, here in front?” Witness did as the question requested and pointed out certain holes in the outer garments which corresponded with the ones in the underclothing worn by deceased, and in doing so he used such expressions as ‘-‘It goes through, and then through the undershirt and the first thing it hit was the top shirt and makes these places here,” etc'. The court, upon objection to the answer, promptly sustained it and thereby cured any prejudicial effect, if any, which
The complained of argument of the Commonwealth attorney under ground 2, as shown by the bill of exceptions, consists of two statements made by him, which are: (a) “If every man guilty of murder in Knox county and who has been tried for that crime in the last ten years had been convicted and given the punishment he deserved, in my opinion this case would not be here today,” and (b), “Gentlemen of the jury, it is up to you to enforce the law. The judge upon the bench, the Commonwealth’s attorney, and the sheriff may do their duty, and yet if the juries who try the cases do not come up to the full measure of their duties, then crime will run rampant in this country. You know that crime is on the increase, and'it will be so throughout all time, unless ample punishment is given to those who violate the laws of the land. This is all current history of this state, and it is also current history of this state that its Governor recently issued an appeal to the people of the state to take the necessary measures to suppress crime. This defendant has been shown by the evidence to be guilty of the crime with which he is charged, and a verdict of yours which fails to send him to the electric chair, in my judgment, will not be the kind of a verdict that should be rendered under the facts in this case.” The court sustained an objection to statement (a), and admonished the jury not to consider it in making up their verdict, but he overruled the objection to statement (b), and the only question presented under this ground is whether that statement was sufficiently prejudicial to authorize a reversal.
This court, as well as many others whose opinions are cited in briefs has frequently said in substance that the duty of a prosecuting attorney is not to persecute but to prosecute, and that he should endeavor to protect the innocent as well as to prosecute.the guilty. He should always be interested in seeing that the truth and the right shall prevail, and to this end he should not travel outside of the record or discuss matters not presented therein for the purpose of-inducing a conviction, since he is not a witness and is only authorized to discuss the proven
The statement about the appeal of- the Governor of the Commonwealth for the enforcement of the laws is plainly but- another reason why the attorney thought that the death penalty should be inflicted rather than life imprisonment. Since, therefore, the statement was-primarily directed toward the punishment which the jury should inflict and not to his guilt or innocence of all crime, .and the jury inflicted the milder punishment, we are unable to see wherein appellant can complain. This court has denounced improper conduct of prosecuting attorneys as forcefully and with as much consistency, perhaps, as any other court and we are still as much opposed as ever to approving any argument or conduct by them which transgresses the limitations of proper license, but that rule does not require that the prosecuting attorney shall withhold from the jury his views touching the extent of the punishment which he in good faith believes the enormity of the crime merits.
Upon the day in question the train arrived at Heidrich at about 10:30 a. m., and the killing occurred within an hour thereafter. To the north of the depot was a restaurant which was owned by a cousin of appellant and he was in it on that day. Defendant, according to his testimony, made the trip to Barbourville on that particular day for the purpose of seeing an attorney on a question
Aside from the testimony of about five eye-witnesses, in substance as above indicated, there are four proven circumstances strongly supporting that testimony and which was not denied by any one except defendant. The first one is the suspicious conduct of James Bailey who did not testify at the trial and who was living at the "time in Harlan county, but he went to his father’s home on the evening before the killing next morning on the same train traveled by the deceased to Manchester. The visit, as we have seen, was ostensibly a social one but the visitor did not remain with his father’s family for the night but boarded a returning train shortly thereafter and got off at
Under the circumstances there was abundant testimony to support the verdict of the jury and we feel that we would be but trifling with justice if we were to reverse the judgment for any of the alleged errors heretofore considered, even were we to concede them to be such, since in no view of the case can it be concluded that they, or any of them, prejudicially affected the rights of appellant.
Ground 3, urged for a reversal, has often been presented to this court and as often denied, because under the provision of section 280 and 281 of the Criminal Code questions concerning the formation of the jury are not reviewable on appeal. The latest case upon this point is McLaughlin v. Commonwealth, 192 Ky. 206, in which it is pointed out that a defendant in a criminal trial has
After a thorough consideration of the whole record we are forced to the conclusion that none of the grounds urged are sufficient to authorize a reversal of the judgment and it is, therefore, affirmed.