116 Ky. 927 | Ky. Ct. App. | 1903
Opinion of the court by
Reversing.
The appellant, J. W. Bess, having been tried, convicted, and given the death penalty in the Fayette circuit court, under an indictment charging him with the murder of Martha McQuin Martin, by th.is appeal seeks a reversal of the judgment of conviction.
His motion for a new trial, which was overruled by the lower court, contains four grounds, viz.: First, that the court misinstructed, and refused to properly instruct, the jury; second, that the court admitted incompetent evidence, and rejected competent evidence; third, that the verdict is against the law and the evidence; fourth, that the commonwealth’s attorney, in his closing argument to the jury, stated facts not in the record — by all of which the appellant’s cause is alleged to have been prejudiced to such an extent that he did not have a fair or impartial trial.
As to the first ground it is only necessary to say that no error in the instructions has been pointed out in the elaborate briefs filed by counsel for appellant, and we are of opinion that- none could be suggested, for they present with excep
As the evidence in the case was in the main circumstantial, in order that we may satisfactorily pass upon the second alleged error complained of, it will be necessary to briefly review the facts upon which appellant’s conviction was secured. On Tuesday, March 10, 1903, the body of Martha McQuin Martin was found in the reservoir on Eddy street in or near the city of Lexington, and was identified by persons who knew her well. When the body was removed from the water it was discovered that it contained several scratches on the forehead, and finger prints on the neck. According to the evidence of medical experts, the bruises on her neck were caused by violent pressure of her flesh, and the neck was limber, showing that it had been wrenched or strained. There was an abrasion of the skin over the left eye, sand or earth between the dye lids, and the eyeball was bloodshotten. The body was not bloated, and the post-mortem examination made, by the surgeons showed that there was no water in either the lungs or stomach. They were in fact practically normal, and therefore in a healthy condition at the time of the woman’s death. The contents of the stomach failed to show the presence of any poisonous substance or opiate.
The evidence! fails to show that Mrs. Martin was seen alive by any one after the buggy ride of Friday afternoon. It is true that one witness testified he knew her by sight, and was of opinion that he saw her pass on the opposite side of the street on Saturday, the day following the buggy ride, but his statement was indefinite, and by no means convincing. Three other witnesses — two of them dentists, and the third a lawyer — testified that they saw in their respective offices, at 5
Further evidence that the death of Mrs. Martin occurred on Friday afternoon or night was furnished by the testimony of a witness living near the reservoir that he saw the clothing of the dead body floating on the surface of the water on Saturday morning, the day following the buggy ride with appellant, but without knowing or taking the trouble to ascertain what it was. What was supposed to be a bundle of old clothes was also seen in' the reservoir by others on Sunday, Monday, and 'Tuesday, but they, too, were ignorant as to what the object was, until the body was removed from the water.
The medical experts and others informed1 on the subject testified that in case of death by drowning the body invariably .sinks, and will not arise to the surface earlier than three days, but that a dead body thrown into the water will not sink; and the physicians further testified that, in their opinion, the woman whose body was found in the reservoir had been dead from twenty-four to seventy-two hours when the body was removed from the water. There was much testimony to the effect that appellant after the death, and before the finding of the body of the deceased, informed a number of his acquaintances that she had gone froiq Lexington to
The trial court permitted the Commonwealth to prove that the deceased, on December 23, 1902, obtained a policy of fire insurance of $350 on her house and its contents, that the
The agent of the insurance company testified that the sum due the 'deceased on her loss was paid in two $100 bills, a twenty dollar and a five dollar bill, and it was stated by the appellant on the witness stand that he informed the deceased that he wished to borrow the twenty dollar bill which she received of the insurance agent, but she made him a present of it, and gave him the two $100 bills to keep, and that when ha went to his room that night he found her there, and at her request returned her the two $100 bills.
Luke Doyle, a policeman, testified that the deceased, about a week before her death, complained to him that appellant had her money, and she could not get it, and they had some talk about causing his arrest. Shortly thereafter he saw her intercept appellant on the street, and what appeared to be an angry .altercation took place between them. On the afternoon of that day appellant went to the witness, and asked him what Mrs. Martin had said to him, and was told by the witness of his conversation with Mrs. Martin, and. that she had said he had $200 of her money. Appellant did not deny that he had her money, but said it was merely a breach of trust, and that she could not do anything unless he wanted to give it back to her. On several days in succession the witness said he was talked to by appellant about the matter, and a,t one time was told by him that he had not given her back the money, but thought he would, and later told him that he had given her $100 of it. On Thursday appellant again met the witness on the street, and asked him if he had seen deceased, and said he was afraid she would shoot him, and on Friday morning (which was the day on the afternoon of which the deceased, according to the evidence, lost her life) appellant inquired of witness whether he had seen
The appellant, in testifying before the jury, made a general denial of nearly all of the facts brought out by the witnesses for the Commonwealth, but seeemed to have but little support from other witnesses introduced in his behalf.
It is insisted for appellant that it was error to allow the introduction of 'evidence in regard to the insurance upon the house and household effects of the deceased, and of the conduct of the appellant in removing the furniture and other property from the house, to which the driver of the express ,wagon testified, or to allow the introduction of evidence as to what passed between the appellant and the driver in regard to the payment by the former of the latter’s license, and likewise error to permit the introduction of evidence in regard to the burning of the house, or as to the payment to the deceased of the insurance money, or the attempt on the part of the appellant 'to collect it. We are of the opinion that all of the evidence mentioned was competent .to show a motive for the homicide. If the appellant took the life of the deceased, the crime was not committed without motive. There are, indeed, few motiveless crimes, and among the motives impelling men to crime is gain. In Burwell on Cir. Ev., section 285, it is said: “The motive of gain, in a .stricter sense of the term, may exist by two different classes of objects: First, by something visible and tangible, which the party m-edi
We are, however, of opinion that the trial Gourt erred to the appellant’s prejudice in not explaining to the jury the full purpose and effect of this evidence. The admonition of the trial judge to the jury on this point, as found in the bill of evidence before us, is as follows: “Gentlemen of the jury, there have been certain witnesses who have testified in this case about statements purporting to have been made by Mrs. Martin. As to that evidence, and whatever evidence has been given to you as to any statements made by Mrs. Martin, that evidence ought to be altogether disregarded by the jury, as if it had not been heard. Her statements, if made as detailed by any witnesses, are not competent testimony, and the jury should disregard it entirely. There may have been evidence in this case tending or not, as -the jury may think, to show that the defendant has) been guilty of some other crime or offense than the one charged in the indictment. In so far as any evidence of that kind has been admitted, it should not bias the mind of the jury; nor your belief, if any you have, that this defendant committed some other offense than the one charged in the indictment, lead you to find a verdict against him upon this charge, except in
Near the conclusion of the admonition the jury were further told by the court that Was his duty to tell them of the “rejection of certain testimony and the purpose for which certain other testimony was admitted;” but neither in that
We find but little merit in the objection urged by the appellant to the statements of the Commonwealth’s attorney set forth in the bill of exceptions. The language complained of was severe in its arraignment of the appellant, but not abusive, and we are unable to say that it was not warranted by the evidence. The conduct of the appellant, as shown by the evidence, his admissions, while upon the witness stand, of moral turpitude, much of which was voluntary and unnecessary, afforded justification for what was said by the Commonwealth’s attorney.
Because of the error of the trial court in failing to properly admonish the jury as to the effect and purpose of the evidence that was competent only to show motive, and of its further error in rejecting evidence of certain of the statements of Mrs. Martin, the judgment is reversed, and cause remanded, with directions to the lower court to set aside the verdict