196 Ky. 167 | Ky. Ct. App. | 1922
Opinion op the Court by
Affirming.
Appellants, George Hall and Bruce- little, were 'jointly tried in the Floyd circuit court on an indictment charging them with wilfully murdering Richard Mosley. They were each convicted of the crime of voluntary manslaughter and given a sentence of 'six years’ confinement in the state penitentiary. Their motion for a new trial was overruled and they have appealed, urging through their counsel as prejudicial errors committed by tbe court (1), refusal of the court to sustain their motion for a continuance; (2), the admission of incompetent evidence offered by tbe Commonwealth; (3), error in the instructions of the court; (4), improper argument of counsel for the Commonwealth; (5), the jury was improperly selected, and (6), that the verdict is against the evidence and is not sustained by it, each of which grounds will be considered in tbe order named.
Tbe motion for a continuance was based upon the absence of Joe Greer and Tom Hall, whose testimony was set out in the affidavit therefor, but it was not shown that
The second ground relied on is so completely without merit that but little need be said in answer thereto. By far the larger portion of the testimony complained of was not objected to, and -the basis of the complaint against all of it is that is was elicited by leading questions, which, if true, would not be a ground for reversal. unless, perhaps, that method of examination was so extensively and artfully indulged in as to make the testimony not that of the witness but a recitation of the facts by the examining counsel. On the contrary, no such conditions appear and the questions complained of but remotely, if at all, violated the rule against leading questions, as will be 'seen by the .subjoined ones, and answers thereto, propounded to some of the prosecuting witnesses by the Commonwealth’s attorney. “Q. After he (deceased) went over to the bank there, railroad fill, and went on his back, tell the jury whether or not you saw him attempt to fire his pistol? A. No, sir, I did not. Q. What did you hear out there about the time George Hall left there? A. There was a shot fired out there just be
The principal complaint under this ground and the only one which may be considered as at all material, is directed to the self-defense instruction wherein the court failed to say that defendants had the right to hill the deceased if it reasonably appeared to them to be necessary to protect themselves or either of them from death or great bodily harm. After properly setting out the predicating facts- which would justify defendants in exercising their right of self-defense, the instruction said, “Then the court tells the jury that the defendants had the right to use such force as was necessary, or as reasonably appeared to them to be necessary, to ward off the then real, or to them or either of them apparent danger, but no more. ’ ’ The complaint is directed to the omission from the instruction of the phrase, or its substance “even to the taking of the life of the deceased.” The criticism of the instruction is technically correct, since it to be formally accurate should contain the last quoted- clause or its substance; but, it does not follow that in every case the judgment should be reversed because it was not so stated in express terms. In other words, if the phraseology of the instruction, coupled with the testimony in the case, is such that the jury could not have been misled to the defendants’ prejudice, the technical error will not be given the broad effect of working a reversal of the judgment. The case relied on as sustaining counsel’s contention as to the fatal effect of the omission is Reynolds v. Commonwealth, 183 Ky. 375. In that case the complained of instruction was so worded as to require the jury to believe beyond a reasonable doubt the existence of the danger which would produce the right of self-defense, and for that reason it was held fatally defective and for which a reversal was ordered. The instruction also contained -the omission herein complained of, since it expressly limited the right of defendant in the- exercise of his right of self-defense to only shotting and wownding
The argument of prosecuting counsel,, of which complaint is made under this ground, if unwarranted and prejudicial (but concerning which, to say the least of it, there is much doubt), can not be considered on this ap
Complaint made under this ground is that- one Hy,den, who was accepted on the jury, was not actually summoned by the sheriff when he was directed to fill the panel with bystanders, and that by some oversight or mistake the juror, who had not been summoned, took his seat upon the panel and was accepted and sworn and with the ‘eleven others returned the verdict. We very much doubt whether the facts concerning the selection of the .juror would constitute error either prejudicial or nonprejudieial, in view of the fact that he was accepted by defendants who had an opportunity to, and presumptively ‘did, interrogate 'him and pass upon his qualifications and thereby waived all informality in the method by which he was called to sit in the case. But whether so or not, .section 281 of the Criminal Code of Practice deprives us of the authority to review this alleged error, a practice which we have consistently observed and followed since •the enactment of that section and which was not altered in this respect by the amendment thereto by the act of •March 23,1910. Two late cases so holding are Frasure v. Commonwealth, 180 Ky. 274, and Leadingham v. Com
Under this ground it will be necessary to make a-brief statement of the substantial facts developed by the evidence. The killing occurred on the late afternoon of ’ Christmas day, 1921; Billy Johnson lived near the mouth-of Little Beaver creek in Floyd county and on that day one of his daughters was to be married at his house about • the noon hour; he lived near the creek just across which from his house was a, railroad track which ran along the bank of the creek. About 200 yards above his house appellant, Bruce Little, lived with his father, mother, and other members of the family. Still above his residence-Hays Johnson lived and further up the railroad and the creek appellant, George Hall, resided. In the forenoon of' the day, as was the custom in the community, a large number of neighbors gathered at Billy Johnson’s residence to-be present at the wedding. Billy Johnson had two grown, sons, Tom and Gus Johnson, and two sons-in-law, Grant Johnson and the deceased, Bichard Mosley, all four of' whom were in the crowd at the house. A short while bef ore-the wedding Hays Johnson, Sol Johnson, Lañe- Johnson,, the appellant, Bruce Little,and perhaps others with them,, appeared but appellant, Hall, did not arrive until somewhere near one o’clock, he having stopped at Gus Little’son his way where he procured his dinner. In the meantime it is quite evident that at least the men folks at the house had imbibed -quite freely of .moonshine whiskey, so-much so that Tom Johnson had out his knife and was engaged in waiving it around and making boasting and general threats whereby he sought to establish his reputation for bravery and general misconduct. He and. Lafie Johnson got into a personal difficulty in the yard, behind the smokehouse and some one became involved in a fight with the deceased,. Bichard Mosley, whereby he received a black eye. The evidence is somewhat confusing as to who actually engaged in the embroilments, but it is quite clear that most everyone there was a willing participant; the solemnity -of the occasion -and the sanctity of the day (Sunday and Christmas day) had no-deterring' effect. Eventually Tom Johnson procured a gun from a rack on the wall and was threatening to use it when he was -overpowered and it was taken from him by his father, who by that time had also become- belligerent, and appellant, Hall, with the assistance of others, took the gun away from him and went into the' yard
Defendants say, and they are supported by other witnesses, that deceased first accosted Little with some angry remarks and at the same time drew his pistol and shot Little twice, once in the thigh and once in the arm, whereupon the latter clinched him -and with his right hand shot him in the back until he fell, as stated, but that he was not then fatally shot, and while on his knees he again drew his pistol and was about to shoot appellant, Hall, when the latter fired the shot with which he is charged. Defendants and some of their witnesses denied that Hall beat deceased with his pistol, or otherwise, or that he attempted to throw him or his body in the creek, although two of the most credible witnesses in the case and who were introduced by the defendants (Hays Johnson and his wife Dora Johnson), supported the testimony of the Commonwealth’s witnesses as to how and under what circumstances appellant, Hall, fired his shot, although they could not see deceased, who was behind the railroad dump from them.
As is always true in such cases, it is almost impossible to get at the exact facts, but if the testimony introduced by the Commonwealth as to what occurred at the time of the shooting is to be believed there was abundant evidence to sustain the manslaughter conviction, for that testimony was' to the effect that Little- began shooting when he was in no danger and without -any reasonable provocation; furthermore, that Hall fired his shot into-the deceased after the latter was perhaps fatally shot by Little and without any provocation whatever. While ■there can be no doubt that the killing of the deceased was largely due to the conduct of Tom Johnson and that Billy Johnson and his sons' and sons-in-law were greatly incensed at appellant, Hall, for breaking the gun, yet the testimony as a whole leads irresistibly to the conclusion that so far as the appellants were concerned “Barkis is (was) willin’;” for we not only have- the fact that appellants were drinking and armed, but the testimony shows that appellant, Hall, was himself engaged in conduct at the house of -Billy Johnson which none but the braggart
It, therefore, results that a careful consideration of the entire record reveals no error prejudicial to the substantial rights of appellants, and the judgment of conviction is affirmed.