205 Ky. 62 | Ky. Ct. App. | 1924
Opinion op the Court by
Beversing.
■ Appellant, Mat Foure, was tried in the Bockcastle circuit court under an indictment charging him with
When the difficulty arose that resulted in a number of shots being fired, some of which struck and killed Chester Mullins, it appears that appellant, who was the police judge of Livingston, Kentucky, and who was and had been totally blind for eighteen years, was in company with W. F. Gillis, the marshal of that town, and James Roberts, and that Mullins, who was killed, was in company with John Poynter. The meeting of the parties occurred on one of the streets of that town and in the nighttime. Shots were fired from both sides, the evidence being conflicting as to the number of persons on either side who took part in the shooting. Poynter, testifying for the Commonwealth, stated that Gillis began the difficulty by shooting at him. Appellant Foure and the two above named who were with him stated that .the difficulty began by either Poynter or Mullins first shooting at appellant Foure. About thirty minutes before the difficulty in which Mullins was killed some one fired several shots in the vicinity of the place where the killing later occurred. Each side charges the other with having fired those shots. Between the time the first shots were fired and that when the second shots were fired the Commonwealth’s witness, Poynter, went to the home of Mullins, who later was killed. The surviving widow of the deceased, while testifying for the Commonwealth, was permitted to testify over the objection and exception of appellant that when Poynter came to her home at that time he told her husband that somebody had been shooting at him and that he wanted Mullins to go home with him because he was afraid to go by himself. .It was proper for the Commonwealth to prove that Poynter went to the home of Mullins and requested him to go. home with him, but it was erroneous to permit the witness to testify as to what Poynter said to Mullins about the shooting that had occurred shortly before then. That
While testifying for the Commonwealth, the surviving widow of the deceased stated that her husband took no weapon with him when he left home to go with Poynter. That clearly was competent. Mullins was killed within a short distance of his home. He was carried back to his home by some of his neighbors immediately after the shooting. He lived some half to three-quarters of an hour after reaching home. To further strengthen her testimony that her husband had no weapon with him that night, Mrs. Mullins testified that when the neighbors brought her husband in she told them that he had no pistol with him that night, and called their attention to the fact that his pistol was at home by turning back the mattress of the bed and showing it to them. This testimony was not objected to. What she said and did to establish that her husband had no pistol on the occasion in question was not competent but was admitted without objection or exception. The defendant offered to contradict her and to show her bias as a witness in the following way: She was asked on cross-examination if, at the time she stated to those who brought her husband home after the shooting that he did not have his pistol and pointed out to them the pistol under the mattress, her little boy, Tom, didn’t speak up and say, “Chester took the big pistol,” and if she didn’t then say to the boy, “hush.” We hold that as Mrs. Mullins had testified as she did about telling those who brought her husband home that he had no pistol and about showing the pistol to them, it was competent to contradict her in the manner offered by the defense. Upon another trial none of that testimony should be admitted.
Poynter, the Commonwealth’s witness, who, with Mullins, was engaged on one side in the difficulty that resulted in Mullins ’ death, is the stepson of the appellant Foure. It appears from the record that some domestic trouble arose in the Foure family because of rumors that
The witness, Eliza Westerfield, who testified for the Commonwealth, told of seeing some man near her gate shortly before the shooting occurred from which Mullins was killed. After stating that she did not recognize the man or know who he was and other facts that establish that -she did not and could not have known who it was, she was permitted, over the objection of defendant, to testify that she thought it was W. F. Gillis: If the witness knew who it was she saw or some facts or circumstances upon which she could base a judgment as to who it was she should be permitted to testify as to who the man was or who in her judgment it was, but she even went so far on cross-examination as to admit that she did not know
It appears that some twénty-thre'e years prior to the date of the homicide for which appellant and W. F. Gillis and Jim Roberts were indicted charged with murder, appellant Foure was convicted of maliciously striking another with a deadly weapon and sentenced to two years in the penitentiary. Although twenty-three years had elapsed between the two occurrences, it was proper for the Commonwealth to prove the fact that Foure had previously been convicted of a felony as tending to affect his credibility as a witness. The Commonwealth was permitted to ask and the appellant required to answer how long he stayed in prison, and the Commonwealth’s attorney then asked the witness this • question: ‘ ‘ Have you been in the asylum?” The court sustained an objection to this question, and he then asked this further question: “Let me ask you this question, is it not true that while the case was pending against- you for which you were- later convicted and sent to the pen that you pretended insanity and that by reason of your pretending insanity you were adjudged insane and sent to the asylum?” The court sustained an objection to that question, but the Commonwealth pursued the matter far enough to ask this further question: “Is is not true that after the time you made public the fact that you pretended insanity and fooled the jury?” The court sustained an objection to that question. The three questions were incompetent and it was highly improper after the objection had been sustained as to the first to pursue the matter further, and we feel that we may say under the circumstances the mere asking of the questions in the form in which they were put was prejudicial to the appellant. The Commonwealth’s attorney asked appellant Foure this question: “How many times in your life have you been in court?” to which appellant objected and which the court overruled and compelled appellant to answer. That question was improper and the objection should have been sustained. The Commonwealth’s attorney, well knowing its incompetency, asked appellant this question: “How many times have you been charged with selling liquor?” The court sustained the objection. The asking of that question was highly improper and under the, circumstances of this case we think prejudicial.
Several witnesses were introduced by the Commonwealth to attack the character of appellant for morality and for truth and veracity. The attorney for the Commonwealth would then ask each witness in substance this question: “From his reputation in these particulárs, state whether you would or could give him full faith and credit on oath?” We think the form of the question is subject to criticism. It is not a question as to whether or not the witness could or would give the party whose character has been attacked faith and credit on oath. The proper form of the question is: “From his general reputation for morals and for truth and veracity, state whether or not in your opinion and judgment he is entitled to full faith and credit when on oath?”
With reference to the instructions given upon the trial of the case below, we do not find any serious error, and, upon another trial, so far as applicable, the court will be governed by the opinion rendered in Gillis v. Commonwealth, supra, with reference to the instructions.
The judgment is reversed and this cause remanded for further proceedings consistent herewith.