200 Ky. 832 | Ky. Ct. App. | 1923
Lead Opinion
Opinion of the Court by
Reversing.
Appellant, who was indicted for the murder of C. E. Heavrin, was found guilty of manslaughter and his .punishment fixed at confinement in the state reformatory for a period of twenty-one years.
The case, as presented by appellant, may be summarized as follows': Appellant and his wife had resided in Louisville for about sixteen years. He was in the tobacco business, and up to within a short time of the homicide she was in charge of the linen department of Herman, Straus & Sons Company, and had accumulated an estate
On the other hand, the Commonwealth introduced the following dying declaration of the deceased:
“Two ladies were in my — office and one started to pay her bill with -a twenty dollar bill and that Mrs. Blackerby who was there to have one of flier teeth looked at changed the money for them and the lady that I — examined, - Mrs. Blackerby’s tooth, after which she went down the steps, and only been gone a very short time just long enough to reach the sidewalk when I heard much noise on the steps and walked to the door. A® I reached the door the man and Mrs. Blaekerby were there, and the man said, ‘I got you’ and shot me. I tried to get the gun but I could not get it.
‘ ‘ Question: Did you try to hurt or fight him Answer: No.”
This was followed by evidence showing the conduct of the parties after the homicide, and particularly the fact that appellant made no effort to call a physician, and admitted that he had shot the deceased.
Appellant was permitted to show that in a previous, statement made by the deceased, but which was rejected as a dying declaration, he was asked and answered the following questions: “Q. Did you have any controversy with him before he shot you? A. Yes, I made a grab for the gun, but it went off before I could wrestle it from him. Q. Then you scuffled with him? A. Yes.”
Relying not only upon- the evidence which he had introduced, but upon appellant’s account of the tragedy, it was the contention of the Commonwealth that appellant, acting from jealousy, deliberately armed himself and went to the office of Dr. Heavrin for the purpose of killing him and did kill him. On the other hand, it was the'* contention of appellant that he had seen Heavrin two or three times before the homicide and made no attempt to kill him, but on the occasion in question he went to Heavrin’s office in company with his wife for the purpose of
The principal ground urged for reversal was the refusal of the court to admit evidence of the relations which existed between Dr. Heavrin and Mrs. Blackerby. We need not repeat the offered evidence. It is sufficient to say that some of the evidence tended to show that the doctor and Mrs. Blackerby were in love with each other, while other portions tended to show that an undue intimacy existed between them, and that the doctor was jealous of another man who knew Mrs. Blackerby. It is insisted that this evidence 'was properly rejected because none of it was ever’ communicated to appellant before the homicide. When evidence that the deceased maintained improper relations, with the wife of the accused is offered by the Commonwealth to show motive, or by the accused to support a plea of emotional insanity or to prove provocation, it becomes, necessary to inquire whether or not the fact of intimacy was. communicated to the accused before the homicide, for unless communicated, it would not operate as a motive for ¡his act or in anywise affect his mental condition (Shipp v. Comth., 124 Ky. 643, 99 S. W. 945, 10 L. R. A. (N. S.) 336); but when evidence of such intimacy is offered in support of the plea of self-defense, the communication of the fact of intimacy is not a prerequisite to its admission, and the reason for the rule is that such evidence, like uncommunicated threats,'shows the deceased’s, state of mind toward the accused, and thereby renders more probable the claim that the deceased was the aggressor.- That this is the natural effect of such evidence there can be no doubt. One who has become enamored of or unduly intimate with the wife of another and has caused her to takrsteps to procure a divorce is much more apt to entertain a feeling of jealousy and hostility toward her husband and to anticipate an attack at his hands and take the initiative in order to avoid the consequences than one whose relations with the wife are altogether proper. The facts of this case well illustrate the rule. Had Dr. Heavrin’s relations with Mrs. Blackerby been only those of a dentist and patient, he would have been wholly free from any feeling of jealousy, hostility or fear that he would have
As before stated, appellant testified in chief that he overheard a conversation between his wife and the deceased, in which the deceased asked what appellant would do if he met the deceased, and Ibis wife replied that he would do no more than curse him as he had done to another man who had shown her some attention several years before. On cross-examination, appellant was compelled over his objection to testify that about six and one-half years before he had gone into a theatre and found his wife with a man whom he afterwards followed out of the theatre and cursed -because of his attentions to hi© wife, and to state numerous other details- connected with the transaction. It will be observed that appellant did not himself testify to tlhe transaction in question, but only stated that the transaction was referred to- in
The deceased .made two written statements in regard to the homicide, one on the night of December 18th, and one on December 23rd. The latter was admitted as a dying declaration, but the former was excluded on the ground that it was not made under a sense of impending dissolution. After the second statement was admitted, appellant was permitted to introduce a portion of the first statement for the purpose of impeachment, a practice which is sanctioned in this state. Tolliver v. Comth., 161 Ky. 81, 170 S. W. 515; Beaty v. Comth., 140 Ky. 230, 130 S. W. 1107. Thereupon the court permitted the Commonwealth to introduce the whole of the first statement. This is. complained of on the ground that the portion so admitted was self-serving and related to circumstances not strictly a part of the res gestae. With the exception that, in the case of dying declarations, it is. not necessary, because impossible, to lay a predicate for the admission of inconsistent statements, we perceive no reason for any distinction between the impeachment of a declarant and the impeachment of any other witness. It is the general rule in this country that where a party seeks to impeach a witness by the introduction of a portion of a former conversation, statement or deposition, the opposing party may then introduce the whole of the former conversation, statement or deposition. Wilhelmi v. Leonard, 13 La.
In two or three instances the court permitted witnesses to be impeached by evidence of contradictory statements without limiting the effect of the evidence. Though in each instance there was an objection and an exception to the testimony, it is insisted that the question was not properly raised because appellant did not request the court to admonish the jury. There is apparent authority for this position, Bennett v. Commonwealth, 175 Ky. 540, 194 S. W. 797, but when the numerous cases are considered in the light of their facts, it will be found that in a criminal case the question of the court’s failure to admonish the jury as to the effect of impeaching evidence may be raised not only by a motion to admonish, but by objection and exception to the introduction of the evidence or a motion to exclude. McDaniel v. Comth., 185 Ky., 608, 215 S. W. 544; Day v. Comth., 173 Ky. 269, 191 S. W. 105; Wright v. Comth., 155 Ky. 750, 160 S. W. 476; Copley v. Comth., 184 Ky. 185, 211 S. W. 558. It follows that the error is reviewable and adds weight to the other errors above discussed, for all of which the judgment should be reversed.
A careful consideration of all the attendant circumstances convinces us that the second dying ¡statement of the deceased was made under a sense of impending dissolution and was properly admitted in evidence.
The instruction on accidental killing is complained of on the ground that it is too abstract in form. While it cannot be said that the instruction was in anywise prejudicial to appellant, we conclude that it is the better practice to give a more concrete instruction, and to that end the form set out in section 754, Hobson, Blain & Caldwell’s Instructions to Juries, is commended.
■It is next insisted that the jury panel was not selected according to law, but in view of section 281, Criminal Code, the court’s-ruling on that matter is not reviewable. Harris v. Comth., 163 Ky. 781, 174 S. W. 476; Deaton v. Comth., 157 Ky. 308, 163 S. W. 204.
Judgment reversed and cause remanded for new trial consistent with this opinion.
Whole court sitting, Chief Justice Sampson dissenting in a separate opinion.
Dissenting Opinion
Dissenting Opinion by
I cannot agree with the conclusion reached in the majority opinion reversing the judgment. I therefore dissent.
The few slight errors- occurring at the trial and pointed out and made the basis for the majority opinion reversing the judgment were not and could not have been, it seems to me, prejudicial to the substantial rights of appellant; and this court, by section 353, Criminal Code, is only authorized to reverse a judgment of conviction in a criminal case when it is satisfied from a review of the whole case that the substantial rights of appellant have been prejudiced by the errors of which complaint is made, and not in any other case. Murphy v. Commonwealth, 1st Metcalfe 365; Robinson v. Commonwealth, 16 B. Mon. 609; Hoskins v. Commonwealth, 188 Ky. 80; Montford v. Commonwealth, 196 Ky. 780; Scott v. Commonwealth, 198 Ky. 714.
In such a long trial where a very large record is built up,' including volumes of evidence, rulings of the court and avowals, declarations and exceptions of counsel, it would he strange indeed if no error was committed. We seldom find such a record, but we frequently find records in which no errors of importance are noted, and on such appeals the judgment is affirmed.
To my mind, appellant -by his conduct in arming himself and lying in wait for the deceased, in approaching his estranged wife and forcing her against her will to go with him to the office of deceased for the purpose of accosting if not assaulting deceased, not only sought the difficulty but piecipitated and brought it about and was wholly responsible for the trouble which resulted in the death of Dr. Heavrin. This being so he surrendered his right of self-defense.
The majority opinion in all other respects is well prepared, and I dissent only because I regard the errors found in the record as too insignificant and unimportant to warrant a reversal of the judgment of the Jefferson circuit court. I believe appellant had a fair and impartial trial and received an exceedingly low penalty at the hands of the jury, the facts considered.