136 S.W.2d 1061 | Ky. Ct. App. | 1940
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *643 Reversing.
Albert Canada appeals from a judgment sentencing him to life imprisonment for the murder of George Hamblin. He was indicted with four others but tried separately. The evidence establishing guilt was circumstantial. The defense was a denial and alibi, together with an explanation of incriminating facts.
The instructions submitted only the questions of the defendant's guilt of murder, committed by him directly or as aider and abettor of the others, or pursuant to conspiracy in which he had joined.
Hamblin was living alone near Cumberland Falls. He had gone home about half-past ten one night in June, 1938, after a fox hunt. Neighbors had heard firing in that direction between 11 and 12 o'clock. The next morning a friend went to his house and saw that a window had been shot out and bullet and gunshot holes all around it. Peering inside he saw Hamblin on a bed covered with blood. Upon calling he received a mumbled answer and undertook to go inside, but found the front door locked. He went for assistance and soon a party of ten or twelve men came. They found the side door open. The man and the bedding and walls of the room were peppered with shot and very bloody. Hamblin was taken to a hospital, where he died several days *644 later without having been conscious. His arm was so badly shattered that it was amputated in an effort to save his life. The most serious wound, and that which caused his death, was a shot in and through the eye entering his brain.
Three sets of foot-prints led from the place, but it was not proven that any were like those made by shoes worn by the appellant. They did correspond with those made by his co-defendants. Blood hounds first trailed to the defendant's home. From there they followed a path some distance in the hills where they came upon the defendant and the other men. The dogs laid down by Everett Canada, the appellant's son, thereby indicating that the trail was ended. The son lived with his father. Two shotguns at his house had been recently fired. Hulls picked up at Hamblin's cabin fit those guns, and shells of the same size and brand were also found there. At least one threat had been recently made by the accused that Hamblin should be got rid of. As hereinafter disclosed, there was abundant evidence of motive.
The appellant argues that the case comes within the rule that where there is no eyewitness to a homicide and the evidence is strictly circumstantial, especially where the surrounding conditions indicate there was a struggle at the time of its commission, the court should instruct upon every phase or degree of the offense that might possibly be applicable in order that the jury may return a verdict under any state of fact which might be inferred from the circumstances to have existed. Fletcher v. Commonwealth,
Appellant relies upon Sergent v. Commonwealth,
It is not required that the court give a routine of instructions regardless of their applicability to the facts of the case. The influence or demand of this fundamental rule respecting the giving of instructions based only upon the evidence has, in effect, modified the general statement that there should be a complete coverage by giving instructions on every possible theory of homicide when the evidence upon which the commonwealth relies for a conviction is altogether circumstantial, with no eye witness testifying. Notwithstanding the repetition of the statement, throughout the entire line of opinions each decision as to the propriety of giving all the instructions has rested upon the fact that there was something in the conditions or circumstances to show the possibility of a basis for a manslaughter or self-defense instruction. There is nothing in this record that could form the predicate of an inference that the man was killed in sudden heat and passion or in sudden affray. There are many rulings which justified the court in confining the instructions to murder. Among them may be cited, as of close application, O'Brien v. Commonwealth,
The Commonwealth proved that shortly before Hamblin was killed the defendant, Canada, had reported to a Federal officer the location of Hamblin's moonshine still, and introduced evidence tending to show a present bad feeling between the parties growing out of illegal liquor operations. It was developed by the Commonwealth in establishing a motive that in 1927 the decedent, Hamblin, the defendant, Canada (who was then Hamblin's father-in-law), and four other men were indicted for the murder of J.M. Bolton, and that in that prosecution, in which Hamblin was tried and Canada not tried, they "were on opposite sides of the case," as *646
were some of the other parties indicted with them. Testimony was also introduced that about five years before this trial the defendant and other men were charged with the killing of Press Perkins, and that "in that trouble" the deceased and the defendant and some of his co-defendants were "on opposite sides." It was shown that Hamblin had testified in that case against Jim Canada and Ancil Richmond, the defendant's son-in-law; and further that both the Bolton and Perkins killing "grew out of moonshine trouble among those people." On cross-examination the defendant was asked and testified that after the first trial of the Bolton case Hamblin had "gone back" and indicted him and Ancil Richmond and others, and that Richmond was tried. Two of those cases reached this court. Richmond v. Commonwealth,
The appellant submits that the admission of this evidence, to which objections were made, violated the fundamental law that a man shall be tried for one offense at a time and that it was incompetent because it tended to show or did show that the accused had committed another crime, wholly independent of that for which he was being tried. See Frasure v. Commonwealth,
Roberson's New Kentucky Criminal Law and Procedure, Sec. 511, thus states the rule in this connection:
"Evidence of antecedent menaces, threats, grudges, or previous quarrels or difficulties between the accused and the deceased and the cause for same are admissible on the question of motive; but the particulars thereof are not admissible. Personal or bad feeling between the parties or feeling of hatred and revenge by the defendant toward the deceased and the cause thereof may always be shown."
The precedents in which this rule of competency was applied may be noted. We have held competent as showing motive for the killing evidence that the decedent had procured an indictment against the accused charging him with assault, Ball v. Commonwealth,
The argument is made that the evidence, particularly as to the Bolton difficulty, was too remote to be admissible. Standing by itself it might be regarded as so remote that it threw no relevant light on the subsequent relations of the parties, but taken in connection with other evidence it tended to establish a continuing state of bad feelings between the parties for many years. Its remoteness went rather to its weight than to its competency. Childers v. Commonwealth,
We think the evidence was confined to establishing motive and grounds for ill-feeling, and therefore was properly admitted.
Officers testified to having arrested Everett Canada, the defendant's son, who was also charged with this murder, and that after getting some information from him they went back to Hamblin's home. Also that they later arrested two other co-defendants, Meadors and Earls. From information given by Meadors they got his pistol at the home of his mother-in-law. It is submitted that this evidence violated the rule against admitting statements and acts of co-conspirators after the commission of the crime. No effort was attempted to prove what these parties had said. The evidence was neither material nor relevant, but it is difficult to see how it prejudiced the rights of the defendant on trial. We hold it to have been harmless.
The defendant was questioned after his arrest by the officer. Some statements he made then were proved to contradict certain testimony he gave on the trial, and it is contended that the court erred in not giving an instruction to the effect that if the jury believed the statements were obtained in violation of the anti-sweating statute (Kentucky Statutes, Section 1649b-1 et seq.), they should not regard them. The subject matter was not very material and by no means can the statements be classed as a confession of guilt or of incrimination. They were proper for introduction for the purpose of affecting the credibility of the defendant as a witness. Therefore, it was not error to omit the instruction contended for.
The evidence, in our opinion, was not sufficient to authorize the submission of the case upon the theory that the defendant was present when the crime was committed. Its sufficiency on the theory of defendant's participation in a conspiracy is not wholly free from doubt, but since the judgment must be reversed for errors in the instructions, we refrain from deciding whether or not the evidence was sufficient to sustain the verdict.
Conspiracy may be and is often necessarily proved by circumstances. Though each incident taken by itself would not be sufficient, if all of them considered as a whole afford a reasonable inference of the existence of a conspiracy — as contra-distinguished from merely raising *649
suspicion — there is a question for the jury. Owens v. Commonwealth,
The evidence of the whereabouts, acts and utterances of the appellant's co-defendants were admitted, of course, on the theory of murder committed pursuant to a conspiracy in which the accused was a participant. It is essential to the competency of such evidence that the existence of a conspiracy in which the actor or spokesman and the defendant on trial were parties should be prima facie shown. Fletcher v. Commonwealth, supra; Davis v. Commonwealth,
Complaint is made of certain argument of the attorneys for the Commonwealth, to which objections were made and overruled. The statement that the defendant had been in court fifteen or sixteen years without being tried because he had "always been able to hide behind the curtains or by putting others in front was improper and should not have been made.
The judgment is reversed.
Whole Court sitting. *650