169 Ky. 620 | Ky. Ct. App. | 1916
Opinion of the Court by
Reversing.
The grand jury of Carter County, on the 26th day of May, 1915, returned against appellant, Robert Frasure, an indictment charging him with wilfully murdering in that county, Stella Kinney, on the 2nd day of May, preceding the indictment. His ease was set for trial at that term of the court and on the 7th day of June. A trial at that time resulted in a hung jury, and a second trial was had at the following October term of the court, resulting in appellant being convicted by the verdict of the jury and his punishment fixed at confinement in the penitentiary for his natural life. His motion for a new trial having been overruled he prosecutes this appeal, assigning numerous errors for a reversal of the judgment.
The ones urged before us may be stated as follows: (1) Error of the court in failing to order a jury summoned from another county adjoining Carter County; (2) the court should have peremptorily instructed the jury to find the defendant not guilty; (3) failure of the court to give to the jury the whole law of the case, and (4) error of the trial court in admitting before the jury prejudicial and incompetent testimony offered by the Commonwealth.
Before considering any of these objections and to assist in an understanding of them when considered, it is necessary that we should make as brief a statement as possible of the facts.
The appellant at the time resided in Fleming County and was engaged in operating a country store about one mile and a half from a station in that county called Ewing. His brother-in-law and the father of the deceased, Stella Kinney, lived some four or five miles east of Olive Hill,' in Carter County, the distance between these two points being something between fifty-five and sixty miles. The murdered girl had been staying at the home of appellant for something near ten months
The horse with the buggy hitched to it was found at about 8:30 o ’clock in the town of Olive Hill, which, as stated, is about a mile or a mile and a half beyond the scene of the tragedy. Some parties drove back to the scene with this horse and buggy and in it brought the girl to the City Hall of Olive Hill, where she was ministered unto and the next morning carried to the home of her father, where she died between twelve and one o’clock of that day, never having regained consciousness or ability to speak. At about the time the girl died the appellant was arrested charged with her murder.
After the death of the girl an autopsy disclosed that she was pregnant and there was removed from her a foetus, which the physician said was some three or four months old. There was also found to be on her head seven distinct wounds, each of them penetrating to the skull and three of them through the skull, and they appeared, according to the testimony, to have been made
First. Section 194 of the Criminal Code permits the trial judge, if he be satisfied after making a fair effort in good faith to obtain a jury in the county where the indictment was found that it is impracticable to get one from that county free from bias, to order the sheriff to summon a jury from some other county where such bias does not exist. The only evidence shown in the record which was presented to thus satisfy the trial judge is the affidavits of the defendant and two other persons, which are in substance that the magnitude of the crime and the fact that it had been tried once before in the county had caused a great deal of talk and many persons had expressed an opinion either for or against the appellant. It is not shown that any great or other number of influential citizens were arrayed against him, and as we take it the conditions were about such as the commission of this character of crime would ordinarily produce in any community, which is, more or less, talk. It is not shown that any person whatever had been engaged in molding or manufacturing sentiment against the appellant, but, on the contrary, that in the agitation of the matter he appeared to have about as many friends as did the prosecution. In considering the manner by which the judge should satisfy himself of the imprac
“The manner of satisfying himself of this impracticability is making a fair effort to obtain thei jury in the county wherein the case is pending, and certainly the court is not to ignore the plain provisions of the Code, and be controlled and guided by the unsupported affidavit of the defendant.”
And again in the case of Commonwealth v. Carnes, 124 Ky. 340, it is said:
“In this case, in view of the facts shown by the record, if the panel should be exhausted before a jury is made up, the judge should supply the jurors by drawing from the drum or wheel, and if, after a reasonable effort in this way, a jury cannot be obtained in Breathitt County, the court may, under section 194 of the Criminal Code of Practice, direct a jury to 'be summoned from an adjoining county.
For a still further discussion of this question, see Brown v. Commonwealth, 20 Ky. Law Rep. 1552; Mosely v. Commonwealth, 27 Ky. Law Rep. 214; Bowman v. Commonwealth, 146 Ky. 486; Sergent v. Commonwealth, 133 Ky. 284.
Under these authorities, the trial judge in this case should have made a reasonable effort to have obtained the jury in Carter County and if this had demonstrated to him that it was impracticable for him to do so, he would have been justified, and it would have been his duty, to have ordered the sheriff to summon the jury from an adjoining county where the citizenship was free from disqualifications for jury service. Not only was the judge not satisfied of such conditions in this case, but it is affirmatively shown that the jury was easily obtained from a venire of fifty men which the sheriff was ordered to and did summon. Under these circumstances, we find no merit in this his first contention.
Second. The theory of the Commonwealth is that the appellant is the author of the ruin of the girl and the cause of her pregnancy and that to hide the humiliation, shame and disgrace to himself and her, he committed the murder, and that this was the motive which prompted him to do so. It is the rule in this jurisdiction that in criminal cases if there is evidence upon which a verdict of guilty could be returned it is the duty of*627 the court to submit the evidence of the defendant’s guilt or innocence to. the jury under appropriate instructions and that in such cases the jury should not be instructed to find the defendant not guilty. Indeed, the law in this respect has gone so far as to permit a case to be submitted to the jury, when it is a criminal prosecution when under the same facts it might be error to have done so if the issue was one in a civil case. Following this rule it is apparent that the court committed no error in failing to instruct the jury to acquit the appellant. As there must be another trial of this case we refrain from pointing out the evidence looking to his guilt and for the same reason we decline to comment upon it.
Third. By this complaint it is urged with great earnestness that the court failed to give the jury by its instructions the whole law of the case.
But two instructions were given, number one submitting the issue to the jury as to the guilt or innocence of the appellant of the crime of murder, and number two is the reasonable doubt instruction. It is earnestly insisted that under the facts presented by the record there should have been given to the jury an instruction submitting to it the crime of manslaughter and another one upon self-defense. And in substantiation of this contention we are referred to the cases of Farris v. Commonwealth, 14 Bush 362; Bush v. Commonwealth, 78 Ky. 268; Greer v. Commonwealth, 111 Ky. 93; Messer v. Commonwealth, 76 S. W. 331; Ratchford v. Commonwealth, 16 Ky. Law Rep. 411; Bert v. Commonwealth, 116 Ky. 927; Frasure v. Commonwealth, 114 S. W. 268; Bast v. Commonwealth, 124 Ky. 747; Rutherford v. Commonwealth, 13 Bush 608. And a number of other cases from this court in which the facts were substantially similar to those in the eases just mentioned.
As illustrating the circumstances under which the rule contended for is applied, and the conditions only when it will be applied, we will make brief excerpts from some of the cases supra. In the Rutherford case, the statement in the opinion as to when the instructions contended for should be given this court said:
“When no witness introduced on. the trial saw the homicide committed, or saw the parties after they met on the occasion when the killing occurred, the law applicable to murder, manslaughter, and self-defense should be given in order to meet any state of fact the*628 jury may find, from the circumstances in evidence, to have existed.”
In the Ratchford ease, upon the point being considered, we said:
“No witness saw the killing, and it was said that, therefore, the homicide might have been excusable self-defense, manslaughter or murder, and as it was the province of the jury to ascertain to which category the killing belonged, it was the duty of the court to instruct on the law applicable to murder, manslaughter and self-defense in order to meet any state of fact the jury might find from the evidence to have existed.”
In the Bast case on the same subject, it is said:
“Thus it will be seen that in a number of cases this court has held that in instances where there was no eye witness to the killing, and the evidence is purely circumstantial, it is the duty of the trial court to give to the jury, as said in the Rutherford opinion, all of the law that might be applicable to the case as developed by the facts proven.”
In the cases referred to the evidence by which the guilt was sought to be fastened upon the defendant was purely circumstantial, and in some of them there was evidence of a scuffle having taken place by which it might be inferred' that the defendant and the murdered person may have been engaged in an encounter out of which the killing grew, and from this the court held that, under such circumstances, it was the duty of the trial court to give to the jury instructions upon all of the points which it was possible for it to find from the evidence to have existed. It will furthermore be noticed that the cases in which the rule contended for must be applied are those in which the testimony is entirely circumstantial and there are no eye-witnesses to the commission of the crime. "We can readily see that if the evidence is entirely circumstantial and only established the corpus delicto, and other circumstances from which it might be inferred that the defendant had some connection with the crime, he would be entitled to the instructions contended for out of due regard for human life and liberty. The law has extended to him this privilege but it has never been carried further. On the contrary, it has been determined in a number of cases, from this court that where the record presents no room for any possible theory, except that of murder or inno
“Appellant complains of the failure of the court to instruct the jury upon the whole law of the case, and especially to give instructions upon manslaughter and self-defense. It is the general rule that where the evidence of a homicide is purely circumstantial ordinarily it is the duty of the court to give the whole law of the case, and especially where there is evidence of a struggle at or about the place of the killing; but in this case, if the theory of the Commonwealth is correct, while there was no eye-witness except appellant himself the evidence is not wholly circumstantial, but rests almost entirely upon the statements of appellant himself, and no one of three witnesses testifies to any statement of appellant as to how the killing occurred or any statement of .his indicating that there was any struggle between them or any altercation whatever. The testimony of the three witnesses as to the statement of appellant, that he had killed Longnecker on the island without giving the details as to how he. had done so, when taken in connection with his previous threats and with the very plain motive which actuated him, almost necessarily precluded the idea that there was a struggle or that the killing was done in self-defense. Certainly if appellant*630 himself had not testified, and there had been no evidence except that of the three witnesses, the action of the court would have been proper.
“But, taking appellant’s version of the matter, we cannot see how he could possibly have been prejudiced by a failure to give a manslaughter or self-defense instruction, when he himself testified that he did not do the killing, and another did; for if the jury had believed his statement appellant would of necessity have been acquitted.”
In this case if only the body of the murdered girl had been found and evidence of tracks and other indications of a possible struggle, without any explanation having been made by the appellant, the rule for which his counsel contends would not only have been proper, but it would have been mandatory on the trial court to have applied it; but, when by his own testimony he has removed the reason for the application of the rule, he cannot complain because the court failed to give him the benefit, of it, nor will the law stultify itself under such circumstances by demanding of those into whose hands its administration is given, to do a vain and useless ■ thing. We are convinced that the court gave to the jury all the law applicable to the facts of the case and there is no foundation for this third contention.
Fourth. The Commonwealth introduced as a witness Dr. Stumbo, who is a distant relative of the appellant and who was his associate in their youth, the doctor now residing and practicing medicine at a place called Weeksbury in Floyd County, which is perhaps 75 miles or more from the place where appellant resides in Fleming County. This witness was permitted to testify over the objection of appellant as to the contents of a letter which it was claimed by the Commonwealth that the appellant had written to the witness some time in March preceding the homicide. The witness did not know the initials of the person’s name who wrote the letter, nor did he know whether it was either written or signed by the appellant; neither did he read the letter. He testified that a letter, which he thinks was written by a man by the name of Fra sure, was received at his post office and it was read to him by his wife, and after that it was thrown into the fire, and therefore could not be produced. Notwithstanding all this, he was permitted to state before the jury the substance
We have previously stated that the theory of the Commonwealth is that the appellant is guilty of causing the pregnancy of the deceased, and to establish this theory it was important that it should show any fact looking- to connecting 'him with her ruin, and it was for this purpose that' this testimony was offered and introduced. That it, if true, went far towards establishing his guilt of this homicide there can be no doubt, for it is a well-known fact that crimes are scarcely ever committed without a motive, and it requires no very great effort to see that one guilty, and especially if an uncle, of the seduction of a female resulting in pregnancy, might, in order to prevent exposure, be driven
If, however, advice is sought from- a great distance and from a relative and boyhood associate, an altogether different conclusion might be drawn from it. These acts would show deep solicitude and display inore than ordinary interest upon the part of the one seeking the information and give color to the belief that some sinister motive prompted the inquiry. We can well imagine how a skillful prosecutor, in his closing argument to the jury, could draw a most convincing picture of the guilt of the appellant, from the writing of this letter, of the crime of seduction sought to be established as the motive for this murder, which, when done, is a most forward step toward his conviction of the murder with which he is charged. Unless the contents of this supposed letter found its way to the jury through the protecting channels of the law for the introduction of testimony, it was highly prejudicial to permit the witness to testify concerning it. That this was not done is plainly manifest. All rules permitting the introduction of writings for the purpose of charging one with admissions therein made, or for other purposes, require that the genuineness of the writing must first be established or there must be sufficient evidence of it to justify a jury in finding it to be so. It is not shown that the appellant wrote this letter, or that his name was even signed to it; nor is there any evidence to justify the jury in finding that he wrote it more than a mere unauthorized suspicion. The rule is equally imperative that if the writing cannot be produced because of becoming lost or destroyed, the witness who testifies concerning its contents must himself have seen the contents, and his information must not have come to bim through another person. In that case it would be hearsay pure and simple. It will be seen from the testimony
Considering the nature and probable effect of this testimony, it is perfectly clear to ns that the court erred to the great prejudice of appellant in permitting it to be introduced in the manner it was. This does not mean that trials shall be conducted with such technical strictness as to fender them free from all error whether prejudicial or not, but it does mean that all of the signboards and guideposts erected by the ripened experience of mankind to direct the courts in arriving at the truth and justice in the conduct of trials, shall not be tom down and destroyed, or altogether ignored.
For the reasons stated the judgment is compelled to be and is reversed, with directions to grant appellant a new trial and for proceedings in accordance with this opinion.