123 Ky. 411 | Ky. Ct. App. | 1906
Opinion by
Reversing.
On a July afternoon in 1902, James Cockrill, -while standing on the main street of the town of Jackson, in Breathitt county, was shot and fatally wounded. The same afternoon he was conveyed from Jackson to the city of Lexington, in Fayette county, where he died on the following day from the effects of the wounds. The fatal shots were fired from a window in the second story of the courthouse. In 1904, the grand .jury of Fayette county returned an indictment against the appellant, charging him with the murder of Cockrill. The indictment contains two counts. The first count charges appellant with willfully, feloniusly, and maliciously shooting at and wounding Cockrill, from the effects of which shooting and wounding he died. The second count charges the appellant with having entered into a conspiracy with one Curtis Jett and others unknown to the grand jury, the purpose of which conspiracy was to murder Cockrill, and while said conspiracy existed, pursuant to and as a result of same, the said Jett and others unknown to the grand jury did willfully, feloniously, and maliciously murder said Cockrill, and further charges that the appellant, who was at said time a member of said conspiracy, and while same existed, and pursuant to same, was present and conveniently near at the time of said shooting and wounding, and did unlawfully, willfully, feloniously, and with malice aforethought, aid, abet, counsel, advise, and encourage said Jett and others to do said shooting.
The court properly refused to require the Commonwealth to elect upon which count in the indictment it would prosecute the appellant. The indictment only charges a single offense, because, if appellant himself shot and wounded Cockrill, or if he was shot and wounded by other persons, and appellant was present, aiding, abetting, counseling and advising the persons who fired the fatal shots, he was equally guilty of the murder of Cockrill; and the Commonwealth had the right to describe the offense in two counts. Cupp v. Com., 87 Ky. 35, 9 Ky. L. R. 877, 7 S. W. 405; Howard v. Com., 110 Ky. 356, 22 Ky. L. R. 1845, 61 S. W. 756. That Fayette county had jurisdiction of the offense is fully settled by the opinions of this court in Commonwealth v. Jones, 118 Ky. 889, 82 S. W. 643, 26 Ky. Law Rep. 867, Hargis v Parker, 85 S. W. 704, 27 Ky. Law Rep. 441.
In view of the fact that this case must be reversed, we refrain from discussing the evidence or expressing any opinion concerning it, except to say that it was amply sufficient to authorize a submission of the case to the jury; and this court has frequently held that, where there is any evidence to sustain the verdict, it will not be disturbed, because it may appear to be contrary to the weight of the evidence
Section 597 of the Civil Code of Practice, which applies to criminal as well as civil cases, provides that: “A witness may be impeached by the party against whom he is produced * * * by evidence that his general reputation for untruthfulness or immorality renders him unworthy of belief; but not by evidence of particular wrongful acts, except that it may be shown by the examination of a witness, or record of a judgment, that he has been convicted of a felony.” This section of the Code has been construed in a number of cases; and, in accordance with its provisions,it has been held in Farmer v. Com., 91 S. W. 682, 28 Ky. Law Rep. 1169; Henderson v. Com. 122 Ky. 296, 91 S. W. 1141, 28 Ky. Law Rep. 1212; Wilson v. Com., 64 S. W. 457, 23 Ky. Law Rep. 1044 — that it is competent to show by a witness that he has been convicted of a felony, but it is not competent to show any particular wrongful act that the witness has been guilty of, or that he has been indicted for an offense. To illustrate : In Welch v. Com., 110 Ky. 105, 23 Ky. L. R. 151 60 S. W. 185, 948, 1118, 63 S. W. 984, 64 S. W. 262, Commonwealth v. Welch, 111 Ky. 530, 63 S. W. 602, the question of the competency of evidence of this character was elaborately investigated, and it was held reversible error to allow the Commonwealth to prove by a deputy sheriff that he had a warrant for the arrest of an important witness for the accused who had testified in his behalf, charging him with detaining a female with intent to have carnal knowledge of her. That case was before this court three times for the consideration of this single question, and instructive opinions concerning it will be found in 110 and
Counsel for appellee do not insist that this evidence was competent, but they say that it was not prejudicial to the substantial rights of the accused, because the evidence in the record is conclusive of his guilt. Section 340 of the Criminal Code of Practice provides that “a judgment of conviction shall be reversed for any error of law appearing on the record,. when upon consideration of the whole case the court is satisfied that the substantial rights' of the defendant have been prejudiced thereby.” Hnder this provision, it is not every error, however patent it may
It is also urged that the attorney for the Commonwealth, in his closing argument, indulged in improper comments and remarks. The improper argument complained of was a comment upon the incompetent evidence admitted. If the evidence had been competent, his remarks would not have been improper, but, as the evidence was incompetent, his remarks were improper.
For the error in the admission of this evidence, the judgment of the lower court must be reversed, with directions for a new trial in conformity to this opinion.