92 Ky. 612 | Ky. Ct. App. | 1892
delivered the opinion op the court.
The appellant was indicted in the Metcalfe Circuit Court for the murder of Elisha Smith. The venue was changed to the Cumberland Circuit, where on the trial a verdict of guilty was returned fixing his punishment at imprisonment in the State prison for life. The prosecution has been pending for near ten years, with five jury trials, three of which were mistrials and two resulting in a conviction for murder. The first conviction was set aside, and at a subsequent term a like conviction was had, from which this appeal has been taken.
Counsel for the accused has discussed the testimony at some length, and if, as contended, the witnesses for the State, some of whom were eye witnesses to the killing, are not 4o be believed, the verdict in this case should have been not guilty.
The principal testimony for the prosecution comes from the three daughters of the dead man, one of whom swears that she saw the accused with pistol in hand firing at her father, and going to his relief the old man exclaimed: “He has shot me to piecesand died in a few moments. His other daughters reached their father in a few minutes after their sister, and he said to them that Austin Eranklin shot him. The witnesses have been attacked in various ways as being unworthy of belief. The one who says she saw the shooting is shown to be a common prostitute, and to have made statements to divers persons to the effect that she did not know who shot her father. The other girls have made, as the testimony shows, many conflicting statements directly at
This case had its origin in the County of Metcalfe, and while the deceased was a man of the lower walks of life, and had but little personal influence, the accused was given a trial in an adjoining county, where he had every opportunity to disprove the ease made against him, and
This murder originated, doubtless, from the fact that the accused had been arrested on a bastardy warrant at the instance of the deceased, charging him with being the father of a child the daughter of the deceased had given birth to; and, although settled, was followed by threats on the part of the accused towards the deceased for having him arrested.
It is insisted by counsel for the accused that it was incompetent to show by the witness (the daughter) that she had been badly treated by the accused, with a view of showing a motive on the part of the accused to commit the crime. The witness stated that “ the accused had mistreated-her and her father made her get out a bastardy warrant for him, and he compromised by paying her (the witness) fifty dollars.” Threats were ’then shown by other witnesses to have been made against the deceased by the accused, growing out of this settlement, and we think it competent as showing a motive on the part of the defendant to take the life of the deceased. The commission of one offense is often allowed to establish a.
In Stout v. The People, 4 Parker’s Criminal Reports, 71, the prisoner was indicted for the murder of the husband of A. It was held competent to show that the prisoner was seen in bed with the wife of the deceased, as furnishing a motive for the commission of the crime.
In the case of Com. v. Merriam, 14 Pickering, 518, on an indictment for adultery, testimony of an improper familiarity between the defendant and the same woman was held competent. It being competent to show a bad feeling between the accused and the. deceased, by reason of the relation of the former with his daughter, there was no reason why the accused was denied the right to show that he said at the time he did not compromise because he was guilty, but was advised that he had better do so, as the Smiths would swear lies against him. This testimony, if admitted, could not have controlled the verdict, but on the contrary conduced to show the hatred that would likely arise on the part of the accused, by reason of his being required to pay this money when innocent of the charge, and in this way sustain the theory of the prosecution.
It is claimed that an instruction should have been given the jury as to their right to credit or discredit the testimony of any witness, when from the facts before them they 'were satisfied the witness was unworthy of belief. An instruction of this character was asked and
It is said further, that the case should have been continued because of the absence of leading counsel for the defense and of two or more witnesses. These witnesses, if present, would have stated what was proven by witness after witness for the defense, and the entire record shows a preparation by the defense and a presentation of the case to the jury covering every point upon which a defense could have been made. Arguments were made by counsel for the State that evidenced much zeal in the effort to convict, but nothing transpired that would require a reversal, on account of the conduct of the prose
More than one counsel appeared for the accused. His case was fully prepared and doubtless ably presented. If influences existed to improperly control the minds of the jury, there are more reasons for looking to them as coming from the defense, by reason of the position of the accused in his neighborhood, than from the humble people whose wrongs the State has at last vindicated by this prosecution.
There is some suggestion made as to the attendance at church by the jury on the Sabbath while this case was being tried, and of remarks made by the minister on the subject of murder. There is nothing in the record to warrant the statement, or showing in any way that this accused has not had a fair trial; in fact, the testimony conduces to show that he seduced the daughter and then murdered the father.
Judgment affirmed.