142 Ky. 647 | Ky. Ct. App. | 1911
Opinion of the Court by
Reversing.
Fred Ferguson and Sarah Hill Higgins were indicted for the murder of William Culbertson. Sbe was tried first. The jury found her guilty and fixed her punishment at eight years in the State penitentiary. The court entered judgment on the verdict and she appeals.
The facts as shown by the proof for the Commonwealth on the trial are these: William Culbertson was the night agent of Ihe Chesapeake '& Ohio Railway at South Portsmouth, Kentucky, which is just across the Ohio river from Portsmouth, Ohio, Sarah H. Higgins and Ferguson lived in Portsmouth, Ohio, although she was a native of Kentucky, and had lived until shortly before the death of Culbertson, in South Portsmouth, Kentucky. She had a son named Ike. Ike and Ferguson were arrested-by the railway authorities some weeks be-' fore Culbertson’s death, for stealing: coal. After this, Ike had a difficulty with William Culbertson, whom he charged with having had him arrested. Culbertson slapped him and he then went off and got a gun. His mother who was present when he came back with the gun, told her son to shoot him, and then when he did not shoot him, said, “Give me the gun, and I will shoot him,” using a vile oath. About two weeks before Culbertson’s death, she said she would bet a dollar that inside of two weeks Culbertson wouldn’t make anybody else quit get
It is insisted that this proof was not sufficient to warrant the conviction of the defendant for the reason that the corpus delicti was not shown. In 3 Greenleaf on Evidence, section 30, it is said:
“The proof of the charge in criminal cases involves the proof of two distinct propositions: First, that the act itself was done; and, secondly, that it was done by the person charged, and by none other; in other words, proof of the corpus delicti, and of the identity of the prisoner. It is seldom that either of these can be provéd by direct testimony; and, therefore, the fact may lawfully be established by circumstantial evidence, provided it be satisfactory.”
Again, in section 131, speaking of the corpus delicti, the learned author says:
“And this involves two principal facts, namely, that the person is dead, and that he died in consequence of the injury alleged to have been received.”
In section 134, he further says:
“The death and the identity of the body being established, it is necessary, in the next place, to prove that the deceased came to his death by the unlawful act of another person. The possibility of reasonably accounting for the fact by suicide, by accident or by any natural cause, must be excluded by the circumstances proved; and it is only when no other hypothesis will explain all the conditions of the case, and account for all the facts, that it can safely and justly be concluded that it has been caused by intentional injury. ”
The Commonwealth showed here beyond doubt that Culbertson was dead and that he came to his death from a blow on the head which fractured his skull. The identity of the prisoner with the crime was shown wholly by circumstanlial evidence and her own declarations. It is earnestly insisted that the proof does not show that anybody killed Culbertson, that it is reasonable from' all the
“A confession of a defendant, unless made in open court, will not warrant a conviction unless accompanied with other proof that such an offense was committed.”
In Patterson v. Commonwealth, 86 Ky., 320, the court pointing out the difference between section 240, relating to confessions out of court, and section 241, relating to the testimony of an accomplice, said:
“But there is a material difference between the two sections. For while one relates to the legal effect to be given to a confession when proved as a fact, the other not only prescribes the legal, effect which may be given to the testimony of an accomplice when credited, but also determines the condition'upon which the jury may give any credence to it. The converse of the proposition stated in section 240 is, that if the confession is accompanied with proof such offense was committed, that is, with proof of the corpus delicti it will warrant a conviction.” (See also to same effect Wigginton v. Commonwealth, 92 Ky., 289; Dugan v. Commonwealth, 102 Ky., 252; Gilbert v. Commonwealth, 111 Ky., 798.)
It is also held in the cases cited that if it is doubtful if the crime has been committed, the jury should be instructed in the language of this section. The defense here was rested in a large measure on the ground that the circumstances shown were consistent with the fact that the deceased was struck by the train; and while there was evidence sufficient to go.to the jury that the offense had been committed, the court should have instructed the jury as provided in section 240.
The Commonealth was allowed to introduce on the trial a piece of iron pipe which the witness stated another man had brought to him at the depot some days after the homicide, and to show that the wound might have been inflicted by such an instrument and that human hair was sticking to the pipe in color like Culbertson’s. The evidence did not show where this piece of pipe came from, when or by whom it was found, and there was nothing in the evidence to connect it in any way with the homicide. It should not have been admitted in evidence without proof showing when and where it was found, and in whose possession it had been since it was found. It
The Commonwealth was allowed to prove statements which were made by Ferguson when he was arrested for the crime, and also statements which he made on the same night that Culbertson was struck, but after he was seen lying on the platform. Any statement that Ferguson made not in her presence after the homicide was committed, is incompetent against Sarah Hill Higgins. The declarations of an accomplice after the commission of the crime, cannot be shown against his co-defendant. All of this evidence should have been excluded. In 3 Green-leaf on Evidence, section 94, the rule and the reason for it, are thus stated:
“It is the same principle of identity with each other that governs in regard to the acts and admissions of agents, when offered in evidence against their principals, and of partners, as against the partnership, which has already been considered. And here, also, as in those cases, the evidence of what was said and done by the other conspirators must be limited to their acts and declarations made and done while the conspiracy was pending, and in furtherance of the design; what was said or done by them before or afterwards not being within the principle of admissibility.”
Complaint is made that the defendant was not allowed to contradict certain of the witnesses for the Commonwealth, by showing that they had made out' of court statements inconsistent with their testimony. Section 597 of the Code provides that a witness may be impeached by evidence showing that he has made statements different from his testimony. Section 598 is as follows:
“Before other evidence can be offered of the witness-having made at another time a different statement, he. must be inquired of concerning it, with the circumstances of time, place and persons present, as correctly as the examining party can present them; and, if it be in writing, it must be shown to the witness, with opportunity to explain it.”
On another trial the court will omit all of instruction 1 except so much as defines the words “wilful,” “wilfully,” “feloniously” and “with malice aforethought.” The remainder of the instruction is unnecessary, and may mislead the jury by giving prominence, to the matters therein referred to. So much of instruction 2 as told the jury that they might find the defendant guilty if she struck and wounded William Culbertson, was proper. The offense is set out in the indictment in these words:
“The said defendants, Fred Ferguson and Sarah Hill Huggins on the 25th day of July, 1909, in the county and circuit aforesaid, before the finding of this indictment, did unlawfully, feloniously, wilfully, maliciously and with malice aforethought, strike and wound Wm. Culbertson with a club or other heavy deadly weapon to the grand jury unknown, from which striking and wounding the said Culbertson died within a year and a day thereafter. The said Ferguson did the striking and wounding as aforesaid and his said co-defendant, Sarah Hill Higgins, was present and did unlawfully, wilfully, feloniously, maliciously and of her malice aforethought aid, abet, encourage and assist her said co-defendant Fred Ferguson in the commission of said crime.”
The latter part of the charge is necessarily an explanation of the general words contained in the former part. The indictment as a whole charges that Ferguson did the striking and that Mrs. Higgins was present aiding and abetting him. But‘under such a charge she may be convicted if she did the striking which caused Culbertson’s death. The precise question was before the court in Benge v. Commonwealth, 92 Ky., 1. In that case it was charged that Hampton did the deed, and that Benge was present aiding and abetting him. Holding under this indictment that Benge might be convicted of actually doing the cutting, the court said:
“The one charged as principal may be found guilty of aiding and abetting; and the one charged as aider and abettor may be found guilty as principal. This is for the reason that each is the agent and instrument of the
That case was f ollowed and approved in Reed v. Commonwealth, 125 Ky., 126, where a number of other authorities are collected.
So much of instruction 2 as told the jury that if the defendant struck and murdered William Culbertson in sudden heat and passion or in sudden affray, and thus killed him, they should find her guilty of voluntary manslaughter, should have been omitted. There was no more reason for giving an instruction on voluntary manslaughter in the case, than for giving one on involuntary manslaughter or self-defense. The defendant’s proof showed that she was at home at Portmouth, Ohio, and knew nothing about the injury to Culbertson. She denied making the threats against him or the confessions shown by the Commonwealth. There was nothing to show a struggle or combat. If the Commonwealth’s evidence was true, Culbertson was murdered in pursuance of a deliberate plan formed by the defendant. She was either guilty of murder or was innocent. This court has 'held that where the evidence is wholly eirmustantial, and there are signs, of a struggle or other circumstances supporting such a conclusion, the court should give to the jury the whole law of the case including the law of murder, voluntary manslaughter, involuntary manslaughter and self-defense;but this rule does not apply where there is nothing in the evidence to show voluntary manslaughter, involuntary manslaughter or self-defense, and where from all the proof, if the offense was committed, it was murder. (Bast v. Commonwealth, 124 Ky., 747; Marshall v. Commonwealth, 141 Ky., 222.)
Judgment reversed and cause remanded for a new trial and for further proceedings. consistent herewith. ••