151 Ky. 587 | Ky. Ct. App. | 1913
Opinion op the Court1 by
Affirming as to Berry Burton, and reversing, as to Charley Harvey.
On February 6, 1912, the grand jury of- Magoffin county returned an indictment against Berry Burton, Charley Harvey, Ben, Harvey, Robert Harvey and Willie Harvey, charging them with the murder .of Samuel Pickleseimer. The first count charges that all the defendants did the shooting and killing; while the second count charges that all of the defendants conspired together to kill Pickleseimer, while Burton did the shooting and killing, the other defendants being then and there {present, and aiding .and abetting therein. Upon the motion of the defendants a change of venue was granted to Floyd county, where the defendants' were tried at the July term, 1912- Upon the conclusion of the testimony for .the Commonwealth, and upon their motion, the court
Many grounds were relied upon below for a new trial, but the brief for appellants confines the argument for a reversal to three points: (1) that the verdict is against the law and the evidence; (2) that the court erred in admitting incompetent testimony; and, (3) the improper conduct of the Commonwealth’s Attorney in the argument of the case. All other grounds for a new trial having been abandoned in the brief for appellants, we will confine this opinion to the points above .suggested.
1. The ground that the verdict is against the law, and is not sustained by the evidence, requires a careful examination of the testimony. The record is a voluminous one, and shows the following material facts: Samuel Pickleseimer was 53 years old, and lived on.Cow Creek, in Magoffin county, about two miles from Berry Burton’s residence, and 400 or 500 yards from John Harvey’s residence. Henry Harvey’s place adjoined that of his brother John.. Charley Harvey and Willie Harvey are sons of John Harvey, while Ben Harvey and Robert Harvey are sons of Henry Harvey. Robert Harvey and Willie were mere boys. Ben Harvey was the son-in-law of his uncle John Harvey. On the night before Christmas, 1911, Berry Burton had gone to John Harvey’s to spend the night, and while there, at about dark, he met Ben Harvey and Charley Harvey. Ben Harvey and his wife had gone to John Harvey’s to spend the night and Christmas with their parents. Several days before; Wiley Reed had promised Ben Harvey a half bushel of apples for Christmas, and about dark Ben suggested that they go down to Reed’s that night and get them. He asked Burton and Charley Harvey if they would go with him, and they consented. They started down the creek to Reed’s, Berry Burton having a pint of whiskey and a revolver. Ben stopped at the residence of his father Henry Harvey, and procured a lantern which they lighted as the night was dark. About this time the two
Finally, Burton pointed his finger at Bernie and said, “Why would I want to kill that man for, and he sitting there smoking and doing himself some good?” These disconnected statements disconcerted Bernie- Pickleseimer -and Reed, and shortly thereafter they departed, riding horseback. Burton admits that he made the remark substantially as above given, -but explained it by saying that he had been badgering one of the girls about women fighting with broom sticks and churn dashers, and that finally he remarked to her that if he had a sand stone he would hit her with it; whereupon she said, “Why don’t you hit Mr. Piokleseimer over there?” and, in reply to her question, he made the answer above given.
Ada Rizner'testified that after Piokleseimer and Reed had gone, Burton said to Chester Rizner, “I know how to get rid of a Gr-D-crowd like that; pick us another tune and we will have to go.” In this- Ada Rizner is corroborated' by her sister Hester, who further says that Burton and his friends seemed not to be in a good humor, and that there was no enjoyment going on. iShe says the defendants were drinking and -cursing, and seemed to be Cxcited; that they whispered around; among themselves, and went out -on the porch once or! twice and talked together. The defendants remained! at Chester Rizner’s two hours or more, and finally left there about fifteen minutes after the departure of Bernie Pickle-seimer and Corbett Reed.
Chester Rizner’s house is only 366 yards from Samuel Pickleseimer’s house. As the defendants left Rizner’s,
“A. Just as they were crossing the branch they shot, and just as they were fixing to cross the branch they shot their pistols off again, and guns, and then they crossed the branch. Charley Harvey hollowed and says ‘Berry, let’s let these off again. They sounded good to me.’ And then he said something else low and I couldn’t understand what it was. Berry says, ‘Yes, by God, I have killed one God damned son-of-a-bitch and I will kill another,’ and Ben Harvey says, ‘Yes, if we have to run them under the bed.’”
“Q. .Where were they when they said- that!
“A. They had crossed the branch at the time.”
It was now between 10 and 11 o’clock. In the meantime, Samuel Pickleseimer had gone out on the porch ■to learn the cause of the shooting. 'He told his son Bernie to go into the house. As Bernie Pickleseimer passed from the well to the front porch, he again fired
Furthermore, it appears that a shot fired from the position which Burton claims he occupied could not have struck Samuel • Pickleseimer. Immediately after the ¿hooting, Burton and Charley Harvey retreated across
Under this evidence, did the trial court err in overruling the appellants’ motion for a peremptory instruction, or in refusing a new trial upon the ground that the verdict is not sustained by the evidence? As to Berry Burton there can be no doubt that the court ruled correctly. He admits he shot twice in the direction of the house, and the disputed question as to where he was standing when he did the shooting was one peculiarly for the jury. The question of his guilt was properly left with the jury, and the verdict is amply sustained by tne evidence.
As to Charley Harvey, however, the case is different. It is nowhere shown that he had a gun or a pistol, or that he fired a shot at any time, or that he had any motive to do so. It is true he was near Burton at the time Burton fired the shots at the Pickleseimer house, but there is nothing to show that he did anything more than would be indicated by his presence, and that he retreated in the other direction immediately after the shots were fired. He admits that' for the purpose of protecting himself from what he supposed was an attack, he called upon Willie Harvey for his gun, but it is nowhere shown that he ever got possession of the gun, or that he ever fired a shot.
After a careful examination of all the evidence, we are of opinion that it does not sustain the verdict against Charley Harvey, and that it should be reversed and set aside as to him, for that reason.
2. It is insisted that the court improperly admitted the testimony as to what happened at Chester Rizner’s. This point is, however”, not well taken, since the defendants were charged with a conspiracy, and there was some evidence tending to sustain that charge. It is insisted, however, that what Burton there said, related to Bernie Pickleseimer and not to the decedent, Samuel Pickleseimer. The criticism of the ruling might have more force if it had been- made to appear that Burton
3. The action of the Commonwealth’s Attorney in his argument to the jury is relied upon for a reversal. Five specific errors are pointed out to sustain this ground; but since no objection was taken to the statements of the first, second and fourth grounds, they cannot be reviewed.
The scope which the argument of the Commonwealth’s Attorney might properly take was outlined in Housman v. Commonwealth, 128 Ky., 825, as follows:
“Much latitude is of necessity allowed an attorney-in the presentation of his case; the only limitations being such as require him to confine himself to the facts introduced in evidence, and the fair and reasonable deductions and conclusions to be drawn therefrom, and the application of the law, as given by the court, to the facts proven. Controlled, regulated, and bounded alone by these limitations an advocate may, with perfect propriety, appeal to the jury with all of the power, force, and persuasiveness which his learning, skill, and experience enable him to command, and of this character of argument the accused may not complain, even though he feels that his conviction may be traceable more directly to the argument of counsel than to the facts proven.”
The third item of misconduct is this: The Commonwealth’s Attorney stated that the defendant Burton had killed one man, and that the Commonwealth’s Attorney had used1 that fact as tending to- show that he was guilty of killing Pickleseimer. To this statement of the Com-monwealth’s Attorney Burton excepted, and the court was asked to admonish the jury not to consider said statement. The record not only shows that Burton admitted in his testimony that he had killed another man, but it further shows that the court sustained his motion to admonish the jury not to consider the statements of th> Commonwealth’s Attorney, and the fact of the former killing, except in so far as it tended to' affect the credibility of Burton as a witness, and for no other purpose. In this the court was clearly right. It is contended, however, that this admonition came too late, because it was not given until after the close of the argument of the Commonwealth’s Attorney. That, however, was in ample time.
After a careful consideration of the whole case, we are satisfied that Berry Burton has had a fair trial, and that there is no substantial error in the record as to him.
Judgment affirmed as to Berry Burton, and reversed as to Charley Harvey, with instructions to grant him a new trial.