135 Ky. 578 | Ky. Ct. App. | 1909
Lead Opinion
Opinion op ti-ie Court by
Affirming.
Beach Hargis shot and killed his father, James Hargis. ,He was indicted for murder, and on a trial before a jury was found guilty as charged; his punishment being fixed at confinement in the penitentiary for life. The court entered judgment on the verdict, and he appeals.
The first question arising on the appeal is in regard to the refusal of the regular circuit judge to vacate the bench. The affidavit filed by the defendant in support of his motion that the regular judge should retire from the bench, and that a special judge should be appointed, is- as follows: ‘ ‘ The defendant and affiant, Beach Hargis, states that the judge of this court, Hon. James P. Adams, will not afford him a fair and impartial trial, and will not impartially decide an application for a change of venue in this case, and that said judge is and has been a bitter partisan Republican and has an unkind and prejudicial feeling against the defendant and all the family of the Hargises. He says: That for a number of years preceding this time there existed in this county a deadly enmity and feud between the Hargis family and its friends, he and his father being among the number, and others of the opposing political party, and those whose tendencies and sympathy was with them, he and his father and the Hargis family being Democrats, and those opposing them being Republicans, or persons who sympathized with them. That many in
He says: That the Hargises, especially his father and himself, to the best of his ability, were active Democrats and active workers for that party at the polls. That during the time aforesaid the said Judge Adams was a candidate for commonwealth’s attorney, and lie and his father actively worked against him. That said Adams being defeated in his race, on the face of the returns, instituted a contest which was very bitter, and in which his father and others were charged with partisanship and illegal conduct. That after this the judicial district was changed by legislative act, and said Adams, having won his contest, became the commonwealth’s attorney in the district as it is at present constituted, and prosecuted the Hargises, his father among others, with great activity and bitterness. That whilst, said Adams was acting as commonwealth’s attorney, Judge Riddell, the circuit judge of this district died. Whereupon the said Adams was appointed judge by th^acting Governor in this district. He states that at the time he killed his father said Adams was commonwealth’s attorney in this district, and he has discovered, for the first time since the adjournment of the last term of this court, expressed himself with great bitterness against this defendant, saying that he had ‘camped upon his lather’s trail,’ and now he proposed to ‘camp upon
The indictment was returned on February 18, 1908. At that term the defendant demurred to the indictment. His demurrer was overruled, and he excepted. The trial was set for the thirteenth day of the term. On that day he filed affidavits for a continuance, and later he filed his petition and motion for a change of ■ venue in the action. Before the proof was heard on the motion for a change of venue, he withdrew the motion. The case was continued for the term, and at the special term in August he filed the affidavit above quoted to remove the regular circuit judge from the bench. In the meantime he had made a motion for bail, and this had been heard and overruled by the circuit judge.
The rule is that an objection to the trial judge raises, in effect a question of jurisdiction, and the objection, to be available, must be made before an appearance to the merits of the action or the submission of preliminary motions by either party preparatory to a trial. Kentucky Central R. R. Co. v. Kenney, 82 Ky. 154, 6 R. 17; German Insurance Co. v. Landram, 88 Ky. 433, 11 S. W. 367, 592, 10 Ky. Law Rep. 1039; Vance v. Field, 89 Ky. 178, 12 S. W. 190, 11 Ky. Law. Rep. 388; Russell v. Russell, 12 S. W. 709, 11 Ky. Law Rep. 547; Bales v. Ferrell, 20 Ky. Law Rep. 1564, 49 S. W. 759. There is nothing in any of the later cases in conflict with the rule laid down in these cases. It is held, however, in all the cases, that matters which
The statement attributed to the circuit judge, was made when he was commonwealth’s attorney in the district, and when he was not circuit judge, and had no reason to anticipate that he would be. He was speaking as commonwealth’s attorney. "When he declared that “he had camped upon his father’s trail, and now proposed to camp upon the defendant’s trail and put him where he belonged,” he was simply expressing what he would do as commonwealth’s attorney. The law made it his duty as commonwealth’s attorney to prosecute all infractions of law occurring in his district. It made it his duty to camp upon the trail of all those who were charged with committing
The office of circuit judge is one of great dignity and responsibility. Perhaps the peace and good order of the district more largely depends upon him than any other one person. The people of the district should not be deprived of the services of the regular judge for trivial causes, or on account of declarations made by him which do not necessarily show such a state of mind as would make him unfit to hold the court for the occasion. If what he says is capable of two constructions, then that which is consistent with his good faith should be preferred. • The burden is on the defendant to show facts manifesting that the circuit judge will not grant him. a fair trial, and he does not do this when he attributes to the circuit judge a statement which may as naturally be construed innocent as otherwise. It does not appear from the affidavit that, while he was commonwealth’s attorney, the circuit judge had taken any part in the prosecution. No facts are stated in regard to this.
The only thing alleged is the declaration as commonwealth’s attorney as to what he would do. The court must take judicial knowledge that the commonwealth’s attorney travels around the circuit with the judge, and that, when he would hear at some point on the circuit that a homicide had been committed, it would not be unnatural that he should say where the facts were, as in this case, unusual, that he would prosecute the case with all his power. We do not
The proof for the commonwealth on the trial showed in brief these facts: On the night before the homicide, Beach Hargis had gone to his father’s store and asked one of the clerks to let him have a pistol. The clerk declined to give him a pistol out of the stock, but told, him that his father’s pistol was there in the drawer of his desk, and he could take that. The defendant got the pistol, but said nothing to his father, although he was then in the store. The next morning between 9 and 10 o ’clock, the defendant was sitting in a barber shop. His face was swollen. He told the barber his father had hit him in the mouth and hurt him there. A man who looked like his father then passed by. He raised up in the chair, threw his hand back, and said, “I thought that was the old man.” About an hour later he drank a bottle of Brown’s Bitters, and said to a bystander, “Did you hear about the old man mashing my mouth?” and added that it was hard to take. Some two .hours later, he appeared at a drug store kept by his brother-in-law, Dr. Hogg. There he drew out his pistol, and
While he was sitting- there in the chair, a man in the other room asked his father where he was. His father pointed him out to the man, and sáid: ‘£ There he sits. I have done all I can for him, and I cannot go about him or have anything- to do with him. ’ ’ A few minutes later his father said to another man who was in the room: ££I don’t know what to do with Beach. tie has got to be a perfect vagabond, and he is destroying my business, and if Dr. Hogg lets him stay there he will ruin his business.” After saying this to the man, the father walked in the direction of where the defendant was sitting. There were a number of persons in the store. As his father approached, the defendant got out of his chair and walked around behind a spool case that was sitting on the end of the counter. No words were spoken. The first sound that anybody heard was the report of a pistol. His father was then about three feet from him. A struggle ensued between them, during- which the pistol was shot four times more; all five of the shots taking effect in the father. ■ Persons in the store ran up, and when they got to them the father had the son-down and had the pistol, which he handed to one of them, saying-, ££PIe has shot me all to pieces.” The father died in a few minutes.
The proof for the son was, in substance, that the father came up to him, struck him in the face, and began choking- him. When he felt his eyes bulging-out, he drew his pistol and shot him, and, his father
We see no objection to the instruction. The court properly used the words ‘£ then and there. ’ ’ The defendant had no right to kill his father unless he was then and there in danger. What had taken place before was only to be considered by the jury in determining whether he was. then in danger. What his father liad previously done would throw light on this question; but it was not competent for any other purpose, for the defendant had no right to kill his father if he was not at the time in danger. A man may not take life unless it was necessary, or apparently necessary, for him to do so. The court did not err in using the words ££a reasonable judgment.” The defendant cannot be excused for killing another if he acted upon
We find no error of the court in sending the case to Estill county on the changing of the venue. The circuit court has a wide discretion in matters of this sort, and this court will not interfere where the discretion has not been abused. The trial was had in the county of Estill, and a large part of the jury was brought from Madison county. The case had been tried once before, and the circuit judge finds as a fact that he could not obtain a jury in Estill county after having made a fair effort in good faith to obtain a
The defendant offered to prove by his grandmother and others that his father had taught him to carry a weapon,- encouraged him to drink whisky, and had caused him to associate with disreputable men, thus rearing him in a-manner calculated to bring about the result which followed. The court properly excluded this evidence. It is no defense for the defendant when he kills another that his father reared him badly, and it is immaterial that the person killed was his father. The enforcement of the laws of the commonwealth which the defendant violated are in no manner affected by the way he was reared. The court allowed proof to be made of the previous assaults by the father upon the son. The defendant complains that the court did not allow him to prove the particulars of these assaults as fully as he should have done. The court, • however, seems to have followed substantially the rule laid down by this court in White v. Commonwealth, 125 Ky. 699, 102 S. W. 298, 1199, 31 Ky. Law Rep. 271, 720. In that case the court said: “We do not mean to say that it would have been proper for the court to have allowed evidence as to all the details of the cutting and wounding of appellant by Layne, or of the assault made upon him by the latter with a club; but the fact that both assaults occurred, the general character of the injuries re
The defendant complains that he was not'allowed to prove by the witness James Isom that about two hours before the killing he met James Hargis, and he then said to him that he would kill the defendant before night, and that he was done with him forever. The witness had not communicated this threat to Beach Hargis; but, although it had not been communicated to the defendant, it was competent to show the frame of mind of James Hargis at the. time. Miller v. Commonwealth, 89 Ky. 653, 10 S. W. 137, 10 Ky. Law Rep. 672; Young v. Commonwealth, 29 S. W. 334, 17 Ky. Law Rep. 18. The evidence should have been admitted. This was error, We find no other substantial error in the admission of evidence in the record. So the question arises: Should a judgment be reversed and a new trial granted for this error? The defendant showed by several witnesses, who were entirely uncontradicted or impeached, that his father a week before had pointed a pistol at him and threatened to kill him, and the conduct of the father at that time was clearly shown. If tbe evidence of Isom had been admitted, it would only have served to corroborate these three uncontradicted witnesses, and the proof as to the conduct of the father on those occasions was such that we are satisfied the testimony of Isom would really have added nothing to an understanding of the case by the jury. The fact that the
Section 340 of the Criminal Code of Practice originally read as follows: “A judgment of conviction shall be reversed for any error of law appearing on the record.” Under this provision many criminal cases were reversed by this court, and so, the better to promote the administration of justice, the Legislature added to the section these words: “When upon consideration of the whole case the court is satisfied that the- substantial rights of the defendant have been prejudiced thereby.” The plain purpose of the amendment was to provide that a judgment of conviction should not be reversed unless upon consideration of the whole case the court was satisfied that the substantial rights of the defendant had been prejudiced by the error complained of. This had been the rule for a long time under the Civil Code, and the purpose of the amendment was to make the rule in criminal cases practically the same as in civil cases. Under the former provision, the court was required to reverse when it found an error in the, record. It was
In Collett v. Commonwealth, 121 S. W. 426, where, as here, there had been an error in the admission of evidence, this court, affirming the judgment, said: “The jurisdiction of this court in criminal cases is wholly statutory. We have oniy such jurisdiction as the law confers. One of the limitations upon our jurisdiction is that a judgment of conviction shall not be reversed for an error of law appearing in the record, unless, upon a consideration of the whole case, the court is satisfied that the substantial rights of the defendant have been prejudiced thereby.” In this case, as in that, the defendant relied in substance solely on the plea of self-defense. The right of self-defense was clearly presented to the jury by the instruction which the court gave. The admission of this uncommunicated threat would not have served in any wise to show that the defendant believed that he was in danger at the hands of his father at the time he shot him, for it was unknown to him. It could only have illustrated his father’s state of mind and served to show the purpose for which he approached him; but, in view of the great mass of evidence heard
When the defendant filed his affidavit asking that the circuit judge vacate the bench, the court fined the attorneys for contempt of court in filing the affidavit. This was error. The defendant was on trial, and he had a right to determine whether he was willing to try the case before the regular circuit judge or not. He had a right to require his attorneys to file the affidavit. If the affidavit was false, the' proper way to punish it was by an indictment for perjury. An affidavit that the regular circuit judge will not afford the defendant a fair trial would, but for the statute, be necessarily a contempt of court, and, if the attorneys may be fined for filing such an affidavit in one case, they may be fined in all cases, and the statute allowing the affidavit to be filed amounts to nothing. We therefore think that it cannot be a contempt of court under the statute to exercise the statutory right; but the defendant was not prejudiced by this on the trial, for the reason that it all took place in Breathitt county before the venue was changed, and it could have had no effect on the trial,before a jury in Estill county a year afterwards.
Judgement affirmed.
Dissenting Opinion
(dissenting). I am unable to concur in tbe opinion of the majority of the court in this case. I think the affidavit filed by the defendant, that he could not obtain a fair and impartial trial before the presiding judge, was more ■ than sufficient, and the judge should have vacated the bench and allowed a ■special judge to be appointed to try the case. The opinion sets forth the affidavit of the defendant in full, and, without recopying it here, I deem it sufficient to refer to it in the opinion.
The affidavit shows that, at the time the homicide for which the defendant was being tried was committed, the presiding judge, Hon. James P. Adams, was commonwealth’s attorney in the district where it took place. .As soon as the killing occurred, the duty of the commonwealth’s attorney with reference to the prosecution began. It was his duty as soon as the homicide was committed to take charge of the case in so far as that was possible or practicable, and to do everything that was necessary, if he thought a crime had been committed, to prosecute the criminal. After the defendant had killed his father, the affidavit shows —and it must be taken as true — that the then com-' monwealth’s attorney said of the defendant “I have camped upon his father’s trail and now I propose to camp upon the defendant’s trail and put him where he belongs. ’ ’
The commonwealth’s attorney, in his mind, began the prosecution of the defendant when he made this speech. It was a declaration upon his part 'that he then took charge of the prosecution and intended to see that the defendant was put where he belonged. Before the indictment, however, the regular judge of that district died and the commonwealth’s attorney, James P. Adams was appointed judge in his stead.
The expression comes from the frontier. To camp upon one’s trail is to follow him up day by day and when nightfall comes the pursuer camps upon the trail of the pursued, so that he can resume his pursuit when morning comes. The Indian camps upon the trail of the white man he is following to kill or de
I do not mean to reflect in any way upon the character or general fairness of the learned judge whose conduct is under discussion. On the contrary, it gives me great pleasure to say of him that I believe him to be an upright, honest, and learned magistrate, whose
On the contrary, it seems to me, if true, to be most important to the interest of the defendant. The defendant showed by his mother and his grandmother that his father on several occasions prior to the killing had beaten him in a cruel manner, from the effect' of which he had been confined to his bed for several days after the occasion, and he offered to show by these ladies that the father threatened to kill his son while he was beating him, and would have killed him but for the fact that he was prevented from so doing. The court excluded the testimony that the father had threatened to kill his son, and that he would have killed him but for the interference of outside parties; and of this ruling the defendant also complains. I think this evidence was competent. The father was beating, his son, presumably, to reform him, and the ■average juror would be of the opinion that, although
The jury could not understand the peril in which Beach Hargis stood without knowing all that had gone before. If the defendant was to be justified at all, he was to find his justification in the savage cruelty of the conduct of his father towards him in the past, and he had a right to have the jury view the killing for which he was tried with this evidence before them in order that they might truly estimate the danger within whose pale he stood at the time of the homicide. James Hargis is shown in this record to have been a savage, cruel man; that he had a high vindictive temper, and allowed, neither fear-nor remorse nor pity to
I am of opinion that the character of this man should have been fully presented to the jury, and especially as the case had been transferred by a change of venue to a county where, perhaps, he was not so well known as in Breathitt. To shoot one’s father seems almost an inexcusable crime, and is so considered by the average man. If it is to be justi
I do not believe that this defendant has had a fair and impartial trial. I believe that the judge who presided in the case was disqualified for the reasons above 'given, and that the error pointed out in regard to the refusal to admit the testimony of Isom, Mrs. Hargis and her mother was so prejudicial to to the defendant’s interest as to warrant a reversal of the case.
Eor these reasons, I am constrained to dissent from the opinion of a majority of the court.
Concurrence Opinion
I concur in the dissenting opinion for two reasons' only: First, the circuit court judge should have vacated the bench upon the filing of the affidavit; and the other is for the rejection of Isom’s testimony. Isom’s testimony not only showed the state of mind of Judge Hargis at the time of the conflict, but it would have tended to corroborate the defendant’s theory that .his father made the first assault. .The affidavit filed to cause the circuit court judge to vacate the bench contained only two matters worthy of notice, one of which is mentioned in the dissenting opinion, and the other is. a statement to the effect that the judge was personally prejudicial and hostile to defendant, either of which should have caused him to vacate the bench.