46 S.W.2d 103 | Ky. Ct. App. | 1932
Affirming.
At about 7 p. m., on December 16, 1928, appellant and defendant below, Melburn Bently, shot and killed Charlie Gibson in a restaurant located in Neon, Ky. He was later indicted by the grand jury of Letcher county and charged with murder, and at his trial was convicted of voluntary manslaughter, but the judgment pronounced on that verdict was reversed by this court in an opinion reported in
However, in the recent case of Loveless v. Commonwealth,
At his second trial defendant was again convicted of voluntary manslaughter and punished by confinement in the penitentiary for five years, and on this appeal therefrom his counsel urges these grounds for a reversal: (1) That the verdict is not sustained by the evidence, and that his motion for a directed verdict of acquittal should have been sustained, but, if mistaken in that, then the verdict is flagrantly against the evidence; (2) improper evidence introduced by the commonwealth over his objections and exceptions; and (3) erroneous instructions given to the jury. Other grounds are incorporated in the motion for a new trial, but they are not referred to in briefs of defendant's counsel, and will therefore, under the prevailing rule of practice in this court, be treated as abandoned. However, the record clearly discloses that none of them possess merit. We will therefore confine our discussion to the three argued grounds enumerated and dispose of them in the order named.
1. In our former opinion we held that the evidence of the commonwealth was sufficient to authorize a submission of the case to the jury, but we expressly reserved the question as to whether the verdict was flagrantly against the evidence and expressed no opinion concerning it. At the last trial the commonwealth introduced one or more additional witnesses who strongly corroborated those who testified for it at both trials, and to that extent the prosecution was strengthened. But, notwithstanding that fact, counsel with great earnestness and zeal still argue that the verdict is unsustainable by the evidence, and to such an extent that defendant was entitled to a directed acquittal, but which to our minds grows out of zeal of counsel for their client, rather than authorized by the correct rule of practice universally adopted and applied by this court. The number of eyewitnesses who testified at the last trial, both for the prosecution and for defendant, were more nearly divided in numbers, and they directly contradicted each other as to the immediate facts surrounding and attending the shooting. Some of those for the commonwealth testified that the deceased, while not excessively intoxicated, appeared to have taken one or more drinks and came into the restaurant singing, while others observed no intoxication.
Some ten or twelve men and women were in the restaurant at the time, and the testimony indicates that *325 the latter were of easy virtue. Deceased patted one of them on the shoulder, and the two finally reached the door of the restaurant, where deceased was standing with one hand on the door facing and the other on the girl's shoulder. At that time defendant and the police judge appeared, and deceased and the judge spoke to each other, addressing each other by their recently acquired nicknames of "Al Smith" and "Herbert Hoover," whereupon defendant said: "You are feeling pretty good ain't you, Charlie?" Deceased answered: "Not no better than common." Defendant then asked him if he was drunk and whether he (deceased) had a gun on his person, which deceased denied, and defendant announced that he would have to search his person. Some of the witnesses stated that defendant said, "I will have to arrest you," while others stated that he said, "I will have to arrest you for being drunk and to search you."
Deceased inquired if he had a search warrant, and made one step backwards with one foot and told defendant to "stand back," and at the same time threw up his hands, with nothing in either of them; whereupon defendant shot twice, but only one wound was inflicted, which killed deceased on the spot, the ball passing up his left nostril and the bullet lodging in the back part of his head. Defendant immediately ran away from the scene, but the police judge remained until the body of deceased could be looked after. Upon the whole the eyewitnesses who testified for the commonwealth made a clear case of unwarranted and felonious killing of deceased by defendant.
A slightly greater number of witnesses (perhaps one or two more) testified that when deceased stepped back and ordered defendant to "stand back" he made a move of his hands as though he was attempting to draw a weapon and some of them, including defendant, stated that he actually drew a pistol, when defendant immediately fired the fatal shot. But, according to our view, the strongest testimony for defendant is susceptible to the interpretation that, accepting the theory of defendant and his counsel, he shot hastily and probably without legal excuse in the exercise of his right of self-defense, or his right to effect the arrest, if indeed he possessed any right to kill in making the arrest, but which latter we do not now determine. However, the reports of the opinion of this court are full of cases *326 announcing and approving the rule that a verdict may not be considered as flagrantly against the evidence because it is founded on the testimony of a less number of witnesses than those testifying to the contrary; and the rule is equally well settled that the members of the jury are the judges of the credibility of the witnesses and of the convincing effect of their testimony in the light of all the facts and the circumstances developed at the trial. It is but little short of overzealousness to argue that the testimony in this case is insufficient to sustain the verdict, much less to argue that defendant was entitled to a directed acquittal.
But counsel unqualifiedly assert that the witnesses who testified for the commonwealth are of a low type of humanity and are disreputable characters with no regard for the truth, in the face of the fact that the record before us is wholly barren of any fact to sustain such charges except, perhaps, that the testimony develops the fact that the business carried on at the place where the killing occurred was not conducted in the same manner of running a Sunday school. But that fact, if an impeaching one, applies as well to the witnesses for the defendant as it does to those of the prosecution. We therefore conclude that there is no foundation for the argument advanced in support of ground 1.
2. The only evidence complained of in support of ground 2 is that given by the witness, Roy Maggard, who was introduced by the commonwealth. He testified that a short while before deceased came into the restaurant defendant was in it and while there put his arms around or on the shoulder of one of the female inmates, of the character hereinbefore referred to. That witness testified to a great many other facts material to the inquiry, and at the close of his testimony defendant moved the court to exclude all of it from the consideration of the jury, and the court overruled the motion, but admonished the jury that the part of the testimony with reference to defendant slapping or putting his arm around or on the shoulder of the female inmate "has no bearing in this case whatever," unless it showed some reason for the later difficulty in which deceased lost his life, and, in substance, that, if there should be no evidence to connect it with the later difficulty, it should be disregarded altogether by the jury. Under such circumstances it is impossible for us to discover wherein that testimony in *327 any manner prejudiced the substantial rights of defendant.
Moreover, it was not objected to at the time it was given, and, if defendant desired its exclusion, he should have confined his motion to the objectional part of the witnesses' testimony, and not to his evidence as an entirety, since much of it was directly pertinent to the issue being tried; i. e., the guilty nature of the homicide. Cases from this court are abundant to the effect that motions to exclude testimony must be direct and confined to the testimony specifically objected to, and not an all-inclusive one directed to both competent and incompetent testimony. We therefore conclude that this ground is without merit.
3. The general objection to the instructions of the court is based upon the theory that defendant was entitled to one directing his acquittal, and, therefore none of the instructions given to the jury were proper. We have hereinbefore disposed of that argument adversely to the contention of counsel. But, in discussing this ground, counsel levels a specific objection to instruction No. 4 given by the court, which is the one defining defendant's rights and duties as an officer if the deceased committed an offense in his presence. The complained of instruction was identical in the respects complained of with the one given at the first trial, and it was approved in our opinion supra, reversing that judgment. It authorized defendant to arrest deceased if the latter had committed an offense in his presence, and the contention here made is, that it should have gone further and authorized him to arrest deceased if he "had reasonable grounds to believe and did believe in good faith that deceased had so committed an offense," although it might eventually turn out that none such was committed, and the cases of Easton v. Commonwealth, 82 S.W. 996, 26 Ky. Law Rep. 960, and Weaver v. McGovern,
Before closing the opinion we deem it proper to say that we do not join in the belief, so earnestly expressed in brief's of counsel for defendant, that he did not obtain a fair and impartial trial, or that any alleged error in the record deprived him of any of his substantial rights. On the contrary, a survey of the testimony as a whole tends strongly to the belief that deceased was unnecessarily killed, and that defendant acted precipitately in firing his pistol.
Perceiving no error prejudicial to the substantial rights of the defendant, the judgment is affirmed.