181 Ky. 443 | Ky. Ct. App. | 1918
Opinion of the Court by
Affirming.
The appellant, Patrick Carney, alias Kearney, jointly with one James Lawler, was indicted in the Kenton circuit court for the crime of murder, alleged to have been committed by shooting and killing John Bhem. The evidence, almost without contradiction, proves the circumstances of the tragedy, to hava been, as follows; On the night of March 5th, 1918, a. building and loan association, which has its office at the northwest corner of Twelfth and Bussell streets, in the city of Covington, was holding a meeting of its members for the purpose of electing officers. On the corner mentioned and facing Bussell street is a building, the front room of which was used as a saloon, and behind the ' room, in which the saloon was kept, were a second and third rooms, which composed the offices of the building and loan association. A door opened from the saloon into the second room and a door from the second room into the third room. The building adjoins the street, and doors, also, open from the street into the second and third rooms, respectively. It seems, that the members of the association were required to pay any indebtedness on their part, to the association before they were eligible to vote in the election of officers and directors. On the occasion of this meeting the deceased, John Bhem, was occupying a seat, at a table, in the second room, where he was engaged in receiving the payments of indebtedness to the association by such members as desired to participate, in the voting, and in this duty he was assisted by three other members of the association, who, also, had seats at the table. In the third or rear room, Theodore Kluemper, who was the chief of police, of the city, and three other members of the association were seated at a table receiving and. counting the ballots, which were cast at the election, by the. members of the association. While they were thus engaged, the ap
The grounds upon which he relies for a reversal of the judgment are:
. 1. The court erred in overruling his motion for a change .of venue.
2. The court erred to his prejudice, in permitting the jury to have a view of the place, where the murder occurred, without his presence.
3. Misconduct of the attorney for the Commonwealth in his argument to the jury.
4. Errors to his prejudice, in the admission and rejection of testimony.
(b) At the conclusion of the evidence offered in support of the indictment, the Commonwealth’s attorney moved the court to direct that the jury be permitted to view the rooms in which the tragedy occurred. The appellant and his attorney were present in court, and objected to the motion, and saved an exception to the ruling of the court, in sustaining the motion. No one representing the prosecution accpmpanied the jury. It went in the custody of the sheriff. No one pointed out any object to the jury, or made any comment, or statement of any kind to the-jury, while it was viewing the rooms. The sheriff, before the jury entered the rooms, excluded all other persons from the rooms. The jury accompanied by the sheriff entered one of the rooms, and passed through the three rooms observing them, as they passed through them, without suggestion or comment from anyone. The appellant did not suggest any desire to accompany the jury, or be present, when it viewed the rooms. "With full knowledge of the fact, that the jury had made a view of the rooms without his presence, he did not ask that the jury should be dis
(c) The alleged misconduct of the Commonwealth’s attorney in the closing argument to the jury, consisted of comments made by the attorney upon the actions of the appellant, in presence of the jury, when witnesses were detailing the circumstances of the murder and the relative positions of the parties, and in which he said, that appellant, pointing out with his hand upon the table, said to his'attorney: “I was not here but over there.” This statement, if true, would amount to a confession by the appellant, that he was present, and in the room, when the deceased Rhem was killed. There could be no question of the impropriety of such a statement by the attorney for. the Commonwealth, as it appears that such statement was not made by appellant to his attorney. The appellant objected to the statement, at. the time, and the court sustained the objection and warned thé jury to disregard and not to consider such statement. The attorney for the Commonwealth, then, in the presence of the jury, disclaimed any intention to be able to repeat any statement by appellant tq
(d) Certain minor errors in the admission of testimony are complained of, but the errors are trivial, and such as could not have prejudiced the appellant’s defense or have in any manner affected the verdict.
(e) It is insisted that the court erred in permitting the jury, when it retired to deliberate to take with them a map which had been admitted in the evidence and used upon the trial in the examination of the witnesses. This was not error, as the ruling was in accordance with the requirements of section 248, Criminal Code.
Upon the entire record it appears that the appellant has had a fair trial and has been convicted of a most atrocious and inexcusable crime by the overwhelming weight of the .evidence.
The judgment is, therefore, affirmed.