130 Ky. 723 | Ky. Ct. App. | 1908
Opinion of the Court by
Reversing.
The appellant, John B. Etly, was in-dieted in the court" below for the murder of bis wife, Virginia Etly. The trial resulted in his conviction; the punishment awarded being confinement in the penitentiary for life. He was refused a new trial, and has appealed.
Mrs,- Etly was murdered about midnight November 8, 1906. The crime wás brutal, both in its conception
Notwithstanding the account given by Anna Etly on the night of her mother’s murder of what she saw and heard of the tragedy, and its complete exoneration of her father from all connection with the crime, she later, and after several days’ separation from him, and the family, told certain* representatives of the Commonwealth a wholly different story, which charged him with the murder of his wife, and this story she adhered to when testifying as a witness on his trial. The last version was to* the effect: That while lying on her bed several feet from that of her mother, by means of a lamp dimly burning in the room, she saw her father walk through their room into the kitchen, return to the bed occupied by her mother, and lie down upon it, at which time he had a knife in his right hand which he drew across her mother’s throat on the right side of the neck; this being the location of the wound as told by Dr. Kelly. That her father then got up and went back to the front room, and she hearing the commotion made by her mother went to her, and seeing her condition, walked to the door and called her father, who came into the room and to her mother’s bed, telling her (Anna) if she ever told what he had done, he would kill her in the same way, after which he went out and summoned the physician, neighbors and police. Certain physical facts were brought out in evidence by appellent to discredit this story of the girl. Among others that if Mrs. Etly when cut with the knife on the right side of the throat was, as the daughter testified, lying on her back and with her right side toward the south wall, the blood, naturally following the least resistance would have spurted on the headboard on
It is also urged as a significant fact that Anna Etly continued to.exonerate her father of the crime charged against him until she was placed under legal restraint," if not arrest, and became afraid the crime would be laid at her door, and, further, that the falsity of her last story was demonstrated by an affidavit which she
On the other hand, counsel for the Commonwealth, while pointing to no proof of motive on the part of appellant, nevertheless insist that there was evidence conducing to show his guilt. For instance it is argued that the bed on which he claimed to have slept in the front room with his little daughter gave no appearance of having been occupied by him, and that only the side of the bed in which the little girl was seen appeared to have been used. Two or three witnesses testified as? to thé appearance of the bed. Whether their inspection was more than a casual look does not
Counsel for the prosecution lay great stress upon the statement which Beam and wife claim to have received from appellant when he asked them to go to his house and give their assistance to his wife, which was that his wife had fallen upon a door knob and cut her throat, and insist that the absurdity of this statement is a circumstance that tends to show his guilt. Appellant denied the statement attributed to
We have set out at length the substance of the evidence contained in the record because of the appellant’s contention that it wholly fails to prove his guilt. It is not our province to express an opinion as to the guilt or innocence of appellant, nor is it our purpose
Numerous grounds are urged by appellant for a revrsal of the judgment of conviction, one of which is that the trial court erred in excluding the testimony of divers witnesses conducing to prove one James Holt guilty of the crime for which appellant was indicted and convicted. Briefly stated, the facts to which appellant’s avowals show the witnesses in question would, if permitted, have testified, were that Holt was a desperate character and dangerous man, who had committed various felonies; that the day before Mrs. Etly was killed Holt was discharged from a long confinement in the city workhouse, his committal to that penal institution having been effected through the procurement and testimony of his. mother-in-law, whom he greatly hated, and that both the mother-in-law and Holt’s wife were so very much afraid of him that during his confinement in the workhouse they moved; their residence without advising Holt where they had moved; that late in the afternoon, and in the early part o-f the night on which Mrs. Etly was killed, Holt then being under the influence of intoxicating liquor, and in an angry mood said to the witnesses referred to that his mother-in-law had testified against him and caused his incarceration in the work
The instructions seem to have correctly given the jury the law of the case. We refrain from discussing other alleged errors relied on by appellant, as they are not likely to be repeated on another trial, but for the reasons given in the opinion we think the ends of justice require that appellant should be granted a new trial; and to that end the judgment is reversed and cause remanded for such trial, consistent with the opinion.