206 Ky. 608 | Ky. Ct. App. | 1925
Opinion op the Court by
Affirming.
On June 13,1923, the grand jury of Breathitt county returned an indictment against appellant, George Bolin, accusing him of willfully murdering Manday Mays, a woman, which crime was committed at about 10:30 p. m. May 25, 1923. Appellant was arrested charged with the commission of the homicide about two hours thereafter and was from thence afterwards incarcerated in the Breathitt county jail. Following the return of the indictment it was set for trial on July 3 thereafter, at which tima defendant moved for a continuance and filed his affidavit in support thereof, which was supported by the affidavit of employed counsel to the effect that he had not had time to prepare the defense, and the same complaint was made in defendant’s affidavit, and he also stated that a number of witnesses for whom he procured subpoenas were absent, but he named therein only one absent witness and of course did not set out the evidence of any of them except the one named, who was Walter Gilbert. The court overruled the motion and on the trial defendant was permitted to read his affidavit as the testimony of the absent witness Gilbert. The jury, under the instructions given to it by the court, convicted appellant and fixed his punishment at death.
His motion for a new trial was overruled, and he prosecutes this appeal complaining of only three alleged grounds for reversal, which are (1), error of the court in overruling the motion for a continuance; (2), error in refusing the motion for a new trial because of newly
1. It is conceded in brief and which is undoubtedly correct that the granting of a continuance of the trial in a criminal case is one addressed to the sound discretion of the court, and unless that discretion is abused to the clear prejudice of the defendant, the action of the court in overruling the motion will not be disturbed on appeal. The facts, which the court should always take into consideration in exercising its discretion when passing upon the motion, are (a), the furnishing to defendant of a reasonable opportunity to prepare for and present his defense; and (b), to see that the trial is so expedited as not to result in unreasonable delay, so as to render it both as to the defendant and the Commonwealth, consistent with fairness and justice to each. Necessarily each ease must be determined upon its own peculiar facts. When the defendant is a stranger in the community without acquaintances or friends, and the witnesses are scattered over a wide territory, some of whom perhaps reside in a foreign jurisdiction, much more time would be required to enable the defendant to fairly, properly and justly present his defense than in a case where the defendant resided and was known in the community and possessed acquaintances and friends therein, and where the witnesses were local to the place, since in the latter case due and proper preparation could be made with less effort or time than in the former one. Here the defendant had from May 26, when he was arrested, to July 3, a space of 38 days within which to prepare for his trial. If he was innocent and not at the place where the homicide occurred, he knew it; as he also knew of his whereabouts during the fatal night, and he likewise knew the person or persons with whom he associated on that occasion and the slightest effort would have procured
As illustrating the influential reasons for the holding in those cases, we will refer to the conditions in only one of them, i. e., the Miller case. In that case the defendant was a stranger in the community; the homicide was committed on (October 4, 1922, and the indictment was returned three days thereafter (October 7), and the trial was had five days thereafter on October 12. The principal defense was insanity, the evidence to sustain which was by witnesses who resided in Alabama, at which place the parents of defendant lived and where he had made his home up to a short time before the homicide, and where was also located a lunatic asylum maintained by the state and in which defendant had been incarcerated. Because of the brief intervening time, defendant was also afforded but little and clearly insufficient time to make preparation for his defense if the case had been one where the witnesses to all of the material facts were local to the scene; and under such circumstances it was held by us that the plain dictates of justice and fairness to the defendant required that he should have further time in which to prepare his defense. The other cases referred to in that opinion, including some of those relied on herein and above referred to, presented similar states of fact, and each of them furnishes potent grounds for the postponement of the trial to such a time as the defendant, in the exercise of reasonable diligence, could prepare for and present his defense. We, therefore, conclude that the court did not err in overruling the motion for a continuance because of the lack of sufficient time for preparation; which leaves for consideration the absence of the witnesses.
As stated, no absent witness was named except Gilbert, and it was claimed that he would testify that defendant on the same night of the homicide, and about one and one-half or two hours prior thereto, was sent by witness to a store in Jackson to buy some No. 32 cartridges
2. A portion of the alleged newly discovered evidence was furnished by the affidavits of some witnesses concerning statements made by certain designated jurors who tried the case to the effect that they entertained an adverse opinion to defendant and would convict bim if they were accepted on the jury. Counter affidavits were filed on those points, and the court necessarily found that no such statements or remarks were made by the jurors referred to, and it is our opinion that the court was correct in that conclusion. The only other alleged newly discovered witness was Dr. C. H. Hurst, who was called to visit the deceased directly after she was shot, she having lived about 24 hours after she was wounded. After the doctor visited the deceased she made a dying declaration in which she stated that she pulled aside a window curtain and looked out upon the porch in front of the room and saw and recognized the defendant, and he immediately fired at her and shot through the window. At this point, we might say that a witness by the name of Spencer was at the house of deceased at the time of
Aside from the testimony of the identifying witnesses, there was proven at the trial a number of guilty circumstances, one of which, that of purchasing the cai>tridges, we have already referred to. Another was that defendant declared to at least three witnesses on that same night and before the homicide that he intended to commit a homicide before daylight. Some of the witnesses said that he threatened to kill one of them and that if he did not do so that he would kill some other son of a b — . There was also testimony as to the defendant returning to his home shortly after the shooting and endeavoring to enter it from the rear, and likewise other facts and circumstances contradictory of the defendant’s testimony and of a more or less guilty nature. So that, if we should concede that due diligence was. exercised to discover the witness, Hurst, and what his testimony would be (which is exceedingly doubtful, since it must have been known that he was the attending physician and the slightest diligence would have suggested interviewing him as to what he heard or discovered while visiting the deceased) we are not prepared to say that his both cumulative and impeaching testimony would have produced a more favorable result, and under all the facts and circumstances of the case we do not think the court abused its discretion in refusing the new trial because of that alleged newly discovered evidence.
3. The remarks of the Commonwealth’s attorney complained of under ground (3), were (a), “The Commonwealth will not be satisfied in a case like this with anything but a death penalty; you gentlemen have sworn that you would inflict a death penalty and I demand it of you. The time has come to show ex-convicts and criminals that they cannot shoot women down in the nighttime in their own homes,” and (b), “You cannot impose a punishment that amounts to anything by sending a man to the penitentiary for life; weak-kneed governors and prison commissioners turn them out on the community and the only punishment that will instill fear in the hearts of 'men who shoot women through windows in their homes is death — death.” The objection to statement (a) is directed to the reference therein to “ex-convicts,” when it is insisted there was no evidence that defendant had ever been convicted or punished for a felony. It is true that the court excluded testimony offered to
Notwithstanding that rule, it was perhaps the duty of the Commonwealth’s attorney to confine his remarks to the testimony that the court permitted to .be introduced, and he could not justify his reference because the court erroneously excluded the testimony to which he referred in his argument. But whether such reference under the facts of this case would be sufficiently prejudicial to authorize a reversal is a question not decided by us because the court sustained the objections to the statement in so far as it referred-to defendant as being an ex-convict, and we think it would be trifling with justice to hold that, under the circumstances, the error, if conceded, was so prejudicial as to authorize a reversal when upon another trial the fact could be proven and the defendant could not then obtain even the benefit of the court’s exclusion.
Lastly, it is insisted that statement (b) was both erroneous and sufficiently prejudicial to authorize a reversal of the judgment, and in support of that contention a number of cases from this court are cited, the most pertinent and perhaps the strongest one being Chappell v. Commonwealth, 200 Ky. 429. Another one bearing directly upon the objectionable feature of the statement is that of Postell v. Commonwealth, 174 Ky. 272. In neither of those cases was the judgment reversed on account of the jury being informed as to the probable consequences of a life imprisonment, although it was held in them that
If the defendant in this case committed the deed for which he was convicted (and there is abundant testimony to establish it), then he has but little grounds to complain of the infliction upon him of the severest punishment, for, according to the testimony of the Commonwealth, it was a cold-blooded assassination without the pretense of provocation, and the only fact that the jury was called upon to determine was whether he was the perpetrator; and it is our conclusion, reached after a careful study of the entire record', that we would be unauthorized to reverse the judgment of -conviction upon the sole ground now under consideration.
There being nothing shown authorizing us to reverse the judgment, notwithstanding its severity, and which fact has been duly considered by us, it is therefore affirmed. Whole court sitting.