200 Ky. 161 | Ky. Ct. App. | 1923
Affirming.
The appellant, Campbell Graham,- John Ed. Donegby and Oscar Letcher, all of the negro race, were jointly indicted by the grand jury of Boyle county for the wilful murder of one Mitchell Neal. On their joint trial in the Boyle circuit court all were found guilty of the crime charged in the indictment by verdict of the jury; the punishment inflicted by the verdict upon the defendants, Donegby and Letcher, being, as to each,' imprisonment in the penitentiary for life, and that of the appellant Graham at death.
The latter filed a motion and grounds for -a new trial, but the motion was overruled, -and this ruling followed by the due pronouncement of sentence upon him by the court and the entering of judgment in conformity with the verdict of the jury. Excepting to the overruling of his motion for a new trial, the appellant prayed and was granted an appeal, his prosecution of which brings; to us for review the judgment of conviction and several rulings of the trial court of which he complains. The defendants Donegby and Letcher seem -to have acquiesced in the verdict, as neither of them moved for a new trial, and neither has appealed from the judgment.
The grounds urged by the appellant for the reversal of the judgment are that the trial court committed reversible error: (1) In overruling his motion for a continuance. (2) In instructing and failing to properly instruct the jury. (3) That the verdict was contrary to law and without support from the evidence.
Each of the above contentions, preceded by another making complaint of the refusal to him by the lower court of a change of venue, was urged as a ground for the new trial moved for by the appellant in that court. It is difficult to understand from the brief of the appellant’s counsel whether the trial court’s refusal of the change of venue applied for by the appellant is relied on by the latter as error entitling him to a reversal of the judgment, but as it is not fully apparent from the brief that it is not so relied on, we do not feel at liberty to pass it by unnoticed.
The application for the change of venue was made by a joint petition of the appellant and his co-defendants setting forth the grounds therefor, which were substantially to the effect that owing to the odium attached to such a crime as that with which they were charged, the
Upon the facts thus presented we strongly incline to the opinion that the more intelligent view of the question at issue was that manifested by the witnesses testifying against the necessity for a change of venue. It has been well settled by numerous decisions of this court that the overruling of a motion for a change of venue, or the selection of the county to which the cause is transferred when a chang’e of venue is granted, will not be reviewed on appeal unless there clearly appears to have been an abuse by the court of its discretion. Toliver v. Comlth., 165 Ky. 312; Heck v. Comlth., 163 Ky. 518; Mansfield v. Comlth., 163 Ky. 488; McElwain v. Comlth., 146 Ky. 104; Truax v. Comlth., 149 Ky. 699; Smith v. Comlth., 148 Ky. 60. As no reason is apparent for holding the ruling of the trial court in refusing the change of venue sought by the appellant an abuse of discretion, such ruling will not be declared error.
The appellant’s contention that the trial court erred in overruling his motion for a continuance of the case is without support from the record. The motion was not
The homicide in question occurred November 26,1922, early in December. The appellant and his co-defendants were given an examining trial before the county judge, which resulted in their being held over, without bail, to the succeeding term of the Boyle circuit court, which began January 1, 1923:, for such action as might be taken by the grand jnry in the case. January 2 the grand jury returned the indictment charging them with the crime, and on that day the case, by a duly entered order of the court, was set for trial January 5, which was the fifth day of the term. The appellant was represented both on the examining and circuit court trials by the same single attorney employed and acting in his defense alone; and the latter’s presence at and participation in the examining trial as the appellant’s counsel must be presumed to have made him familiar with the facts then disclosed by the evidence respecting the commission of the crime charged and that tended to prove the appellant’s guilt or innocence thereof. Nor were the opportunities of the latter’s counsel for obtaining information necessary in preparing for the defense of his. client on the trial later to result in the circuit court, limited to the examining trial and its occurrences; for further opportunities for any additional information needful to such preparation were amply afforded counsel by the three or more weeks of time that intervened between the examining trial and the beginning of the trial in the circuit-court, during which there was no obstacle in the way. of his visiting and conferring with the appellant at the county jail in regard to his defense on the approaching
It is apparent from the foregoing facts and circumstances that the claim of the appellant and hia counsel that they were unprepared for the trial of the former at the time fixed by the circuit court, or stood- in need of the continuance asked for time to make such preparation, is wholly lacking in merit. The same seems to be true of the complaint contained in the affidavit of counsel of the alleged failure of the court stenographer to furnish.them, on -or before the circuit court trial, with a carbon copy of a transcript of the evidence steno-graphically taken by her on the examining trial. It was not stated in the joint affidavit that such copy was promised appellant’s counsel, or counsel for either of the other defendants by the court stenographer, and if it was desired to refresh his and their recollection, or that of witnesses, as to the evidence previously introduced on the examining trial, that fact was not stated in the affidavit.
The affidavit of the court stenographer, Miss Susan H. Bagby, was filed in resistance of the motion for the continuance, in which it was substantially stated that 'King Swope, attorney representing a defendant in the indictment in question other than the appellant, was the oifiy counsel who approached -her in respect to the furnishing of a transcript of the evidence introduced on the-examining trial; and that from his statement to her on the subject, it was her understanding that he would want her to furnish him a carbon copy of the transcript of the evidence taken by her in shorthand on the examining trial for the use of the defendants, if .such evidence should be ordered transcribed by the Commonwealth’s' or -county attorney; but that if not so ordered transcribed the copy would not be expected by him. The affidavit further states that the transcribing of the evidence was not directed by the Commonwealth’s or county-attorney and therefore was never done. Upon the showing of facts made by the above affidavit, which were uncontroverted, no sound reason can be assigned for sustaining the appellant’s contention that the failure of the
Section 185, Criminal Code, provides that if the defendant is in custody or on bail when the indictment is found “the trial may take place at the same term of the count, at a time to be fixed by the court. The granting or refusing of a continuance in a criminal, as in a civil case, is within the sound discretion of the trial court; and in the absence of an abuse of such discretion by that court its ruling in granting or refusing a continuance will not, on appeal, be declared reversible error by the Court of Appeals. Kelly v. Comlth., 165 Ky. 483; Harris v. Comlth., 163 Ky. 781; May v. Comlth., 153 Ky. 141; Brennon v. Comlth., 169 Ky. 815; McDaniel v. Comlth., 185 Ky. 608. The reasonableness and fairness of this rule is manifest when it is considered that what is a reasonable opportunity to prepare for trial and what time should be given, must necessarily depend on the facts and circumstances of each case and primarily left to the discretion of the trial court, subject to review.
It would be an unnecessary waste of time to discuss seriatim the cases of McDowell v. Comlth., 181 Ky. 766; Allen v. Comlth., 168 Ky. 325; Miller v. Comlth., 197 Ky. 703, and othersi cited for the appellant. It is sufficient to say that they are too unlike the case at bar to give any support to his contention of error in the refusal to him of a continuance, for the showing of facts made in each of them on the defendant’s motion for a continuance was such as to clearly manifest a total lack of time or opportunity for the preparation on the part of the defendant or his counsel necessary to secure to the former a fair trial. Hence, the reversal that resulted in each case was unavoidable, because indispensably neces
In looking into the appellant’s contention regarding the instructions we find no objection to any of those that were give by the trial court, except the one numbered 7, as to which no criticism is offered. His only complaint is as to its refusal to give instruction A, offered by his counsel, and the giving in lieu thereof of instruction 7. The instructions were ten in number and by them the jury were advised of the law bearing on every aspect of the case, including that in respect to self-defense and accidental killing. Instruction A, offered by the appellant and refused by the court, was as follows:
“Although you may believe from the evidence beyond a reasonable doubt that the- defendant, Campbell Graham, shot and killed the decedent Mitchell Neal, and if you further believe from the evidence that the defendant, Campbell Graham, at the time and place of so shooting and killing said Neal was so drunk that he did not have the intention of killing the said Neal, then you will find him not guilty of wilful murder as defined in instruction No. 1.”
Manifestly the court’s rejection of this instruction was authorized, because it would, if given, erroneously have told the jury .that the drunkenness of the appellant, if they found he was drunk when he .shot the deceased, might be considered by them as showing the absence of any intent to commit, the act, which if believed by them would compel them to acquit him of the crime of murder. If this, should be conceded to be the law, the instruction would nevertheless be fatally defective, as it failed to tell the jury that though in the state of case predicated they could not find the appellant guilty of murder, it would still be their duty to find him guilty of voluntary manslaughter. No principle is better settled than that voluntary .drunkenness will not excuse or condone a homicide, but it may be shown in evidence and considered by the jury, in connection with all other evidence in the ease, in determining whether the killing was done under
While cases of homicide are to be found in which instructions advising the jury of the purpose for which voluntary drunkenness, though not excusing the crime, might be considered by them, it will be discovered that in these cases insanity was the defense relied on. Mathley v. Comlth., 120 Ky. 389; Wright v. Comlth., 24 R. 838. On the other hand, it has been held in numerous cases that in the absence of a plea of insanity, the refusal to give such an instruction was not error. Wilkerson v. Comlth., 88 Ky. 29; Bishop v. Comlth., 22 R. 760; Buckhannon v. Comlth., 86 Ky. 110.
In the case at bar there was no defense of insanity by the appellant. He admitted upon testifying in his own behalf that he must have shot and killed the deceased, but claimed that by reason of his drunken condition at the time he w~as unconscious of it. The testimony of other witnesses conduced to prove that the appellant shot the deceased, but failed to corroborate him as to the extent of his intoxication. The only motive for the homicide apparent was that of robbery, of which there was abundant evidence. The case in many of its aspects is much like that of Harris v. Comlth., 183 Ky. 542, the principal points of difference between the cases being that in the Harris case the defense attempted to be interposed was. both insanity and drunkenness, whereas in the instant ease it was only drunkenness. In the Harris case an instruction on voluntary manslaughter was refused and in the instant case it was given. In that case it was held that while evidence of drunkenness on the part of one accused of murder, even where malice is proven, is admissible as a part of the res gestae for considera
As in that case there was direct proof of express .preexisting malice, it was held that the failure of the trial court to give an instruction on manslaughter was. not error. In the instant case, however, in which such express malice was not proved, but the motive for the killing was. shown to be robbery and the malice therefore implied, the giving of the instruction on manslaughter by the trial court was authorized.
Instruction No. 7, relating to accidental killing, should not have been given by the court, as there was no evidence upon which to base it, but as instead of prejudicing the appellant in any substantial right, it gave him an additional ground of defense unauthorized by the evidence and, in consequence, another chance for acquittal, the giving of the instruction was an error of which he cannot complain. With the exception of No. 7, the instructions of the trial court properly gave the jury all the law of the caso.
The appellant’s final contention that the verdict is unsupported by and flagrantly against the evidence can be sufficiently answered by a brief, statement of the material facts shown by the evidence, which are that in the forenoon of the day of the homicide the appellant and his co-defendants,- Donegby and Letcher, by appointment met Neal, who was a Tennessee bootlegger, near Danville and purchased of him a quantity of moonshine whiskey for which' they paid- him the price' demanded, amounting to more than $20.00. They rode in an automobile and returned in it to Danville with the whiskey in sacks. In the afternoon they again got together -and went in the automobile, as they testified, to another appointment with Neal to get more whiskey, going in the direction of Junction City. They met Neal walking-on the railroad near the residence of a Mr. Miller, where, according to the testimony of Donegby and Letcher, appellant got into an altercation with Ñeal and shot him; Another negro man in view testified that he -saw the shooting, but did not know the parties. Appellant testified that he remembered drawing his pistol at the second
It is clear from this evidence that the motive for the killing was the robbery of the victim, and according to the whole of the evidence the appellant fired'the shot that caused Neal’s death, and this he did not deny though claiming to be unconscious of it. In one of the instructions of the court the jury were properly advised as to the necessity of corroboration of the accomplices. The evidence as a whole left no doubt of the appellant’s guilt, and whether his admittedly voluntary drunkenness should have reduced his crime from murder to manslaughter or entitled him to imprisonment for life instead of death, by way of punishment, were questions to be determined by the jury. No reason is shown by the record for disturbing the verdict. It is therefore our ■painful but imperative- duty to approve it. Judgment affirmed. The whole court sitting.