202 Ky. 509 | Ky. Ct. App. | 1924
Opinion óf the Court by
Beversing.
Sol Noble was shot and killed in Perry county on October 2, 1922. Grover Fugate, Jake Fugate, his brother, and Pot Napier were jointly indicted for the crime. On a separate trial Grover Fugate was found guilty and his punishment fixed at death. From the judgment based on the verdict this'appeal is prosecuted.
Appellant and the deceased both lived on Leather-wood creek in Breathitt county, four or five miles apart. Some years prior'to the homicide appellant killed the son of the deceased. He was convicted and sentenced to' the penitentiary, but before his term expired he was pardoned by the Governor. He returned to his old home on Leatherwood, and during the next two years it does not appear that there was any trouble between him and the deceased. On the day of the homicide, a religious meeting of some kind was being held at a church on Grapevine creek, in Perry county. Appellant and deceased both attended the meeting, but at different times. Appellant ■says that he left home early that morning to look after some cattle, and had been directed by his father to go by the church, and if his father was not there to come on up the creek. He reached the church about nine or ten o’clock in the morning, remained there until about noon and then started up the creek.- -At that time Pot Napier and others were traveling the road in a wagon. The deceased rode up to the wagon and shook hands with Pot Napier. At that time Grover Fugate arrived and said, “Sol, will you shake hands with me?” The deceased said,
When the case was called for trial on the 19th day of the January term, 1923, appellant filed an affidavit for a continuance on account of absent witnesses. The attorney for the Commonwealth demurred to the sufficiency of the affidavit and motion for continuance. The demurrer was overruled and the continuance denied, with the understanding that the affidavit be read unconditionally as the deposition of the absent witnesses. Thereafter the entire affidavit was read as a part of the evidence for the defense, but on motion of the Commonwealth the court excluded all of the evidence of Andy Allen and Oscar Allen, who testified as to threats made by the deceased against appellant, not on the ground that it was irrelevant or incompetent, but presumably on the ground that
On motion of appellant a special bailiff to the counties of Breathitt and Wolfe was appointed and warrants of arrest for the witnesses mentioned in the affidavit for continuance were placed in his hands for execution, but he never reported any action thereunder to the court. The Constitution guarantees to the accused the right “to have compulsory process for obtaining witnesses in his favor.” Constitution, section 11. This provision is not satisfied by merely placing warrants of arrest for witnesses in the hands of an officer. It contemplates that the officer shall make diligent efforts to serve the process, and the court should see either that the process is served or can not be served for a good and sufficient reason, and to this end should require the officer to make a return at least before the evidence is completed.
On cross-examination appellant was asked by the attorney for the Commonwealth why he stayed out all night on the creek and did not come to Hazard immediately and surrender himself. He replied that he was afraid he would meet up with “some of them” and have further trouble, as they were out in the hills dodging. On redirect examination he was asked who was out scouting. He replied that it was Sol Noble’s boys and two of his grandsons. To this evidence the court sustained an objection, whereupon appellant offered to prove by the witness the names of the parties who were out scouting and of whom he was afraid, and avowed that the witness would answer truthfully that it was Bud Noble, Beecher Noble and Soldier Noble, one of them being a son and the other two grandsons of the deceased. While the flight or concealment of the accused after the commission of the homicide may be shown as furnishing a presumption of guilt, the accused should be permitted to explain his flight or con
On cross-examination, appellant, Pot Napier and Jake Fugate, were each asked if he and the others did not say and do certain things in the presence of Harlan Neace, and they answered in the negative. Thereafter Neace was called in rebuttal, and the same questions calling for an answer of yes or no being propounded to him, he answered in the affirmative. Later on, appellant, Pot Napier and Jake Fugate were called in rebuttal and interrogated in regard to the matters testified to by Neace, but the court declined to permit them to answer on the ground that they had already testified. While trial courts have a broad discretion as to the time and manner of the introduction of evidence, the practice pursued in this case is not to be commended. The evidence in question consisted of statements and conduct on the part of appellant and of Pot Napier and Jake Fugate in his presence a short time before the homicide, and was substantive in its character. That being true, it was admissible in chief and no foundation of any kind was necessary. Had it been offered in chief, Neace would have been asked to say what the witnesses said and did in his presence, and the witnesses would have been permitted to testify in rebuttal with the proper advantage of the last say on the question. As it was, however, this advantage was given to the Commonwealth, with a further advantage of having Neace answer yes or no to leading questions instead of giving his own account of what occurred in his presence. Robinson v. Commonwealth, 178 Ky. 557, 199 S. W. 28.
On his direct examination Jesse Neace, a witness for the accused, testified that some time before the homicide he met the deceased, who stated that while he was shaking hands with Pot Napier, Boozer (Grover Fugate) stepped up and asked him if he would shake hands with him, whereupon he said, “Yes, by God, shake hands with a man and kill him too.” On cross-examination he was permitted to testify that later on he met appellant, who seemed to be “pretty harsh about something,” and claimed that he (witness) owed him $50.00, and said, “If you don’t get that up for me, I am going to kill yon.” In
While arguing the instructions, one of the attorneys for- the Commonwealth called attention to the fact that no instruction on conspiracy had been given by the court. He then said to the jury that the reason the court did not instruct on conspiracy was because the defendants had severed their trial, and, turning upon appellant and his counsel, said that there was only one man on trial, and that, therefore, the court could not instruct on conspiracy. He also added that if the defendants had been tried together on the same evidence, the court would have instructed on conspiracy, but could not do so because Glrover Fugate alone was on trial, and the other defendants, Pot Napier and Jake Fugate, were not on trial. To this-statement appellant objected, whereupon the court said to the jury: “I have given the law in this case, and I will give the law in other eases as they come up.” To this ruling of the court appellant excepted. Thereupon the attorney for the Commonwealth continued to argue to the jury that a conspiracy was proven, but that no conspiracy instruction was given because of the conduct of
Judgment reversed and cause remanded for a new trial consistent with this opinion.