134 Ky. 726 | Ky. Ct. App. | 1909
Opinion op the court by
— Affirming.
The appellant, John Hoffman, with one shot from a musket loaded with leaden slugs, killed Simon Gross and Bert Flinchem. The double homicide occurred at night near the homes of all the parties, in Estill county. Appellant and his wife, Eitta Hoffman, were jointly indicted for the killing of Gross; the crime charged being murder. Appellant, at the instance of the Commonwealth’s Attorney, over his objection, had a separate trial, which resulted in his conviction; the jury returning a verdict finding him guilty of murder and fixing his punishment at confinement in the penitentiary for life, upon which verdict judgment was duly entered. Appellant was refused a new trial in the circuit court, and by this appeal seeks a reversal of the judgment of conviction.
It does not appear from the record whether appellant or his wife was indicted for killing Flinchem, or
Mrs. Gross testified that appellant, after ordering his wife home, threatened to take the life of her husband, saying, • if Gross did not release his son, he would shoot him; that, when this threat was made by appellant, her husband went to the house of David Flinchem, the father of Bert Flinchem, and there got a gun, with which, and in company with Bert Flinchem, he was returning to his own home when he was met in the road by appellant, who then fired the shot, which killed both Gross and Finchera.
Appellant admitted that while at Gross’ home he had his gun with him, but said, when he heard the quarreling between his wife and Gross, he started toward-them'without the gun, but before getting to them rocks were thrown at him by persons whom he could not see; that one of the rocks struck and seriously wounded his leg, which caused him to return to his home and get the gun for his protection. His version of the killing was that, after directing his wife to go
One of the younger Flinchems, standing a short distance from Gross and Bert Flinchem when they were killed, testified that Gross had his gun on his shoulder when appellant fired at him, and that he (the witness), upon seeing Gross and Bert Flinchem fall, shot twice at appellant with a pistol, and that the latter thereupon fled. Other witnesses testified, however, that Gross did not have the gun at his shoulder or pointed at appellant. When arrested by a deputy sheriff, appellant confessed he killed Gross, and that he intended to do so, believing it necessary to save his own life, for Gross was then pointing a gun at him and about to shoot, but .he (appellant) did not intend to shoot Bert Flinchem, or know that he was with Gross.
It is proper to say that Mrs. Gross was strongly corroborated as to what occurred before and at the
It is insisted for appellant that numerous, errors were committed by the trial court which entitled him i.o a reversal of the judgment complained of. One oí the alleged errors consisted in the court’s compelling appellant to undergo a separate trial in the face of his objection thereto. The order, which shows the ruling of the court referred to and appellant’s objection to the same, also shows that the defendant, Ritta Hoffman, was “before the court, but not present.” It does not appear from the record why appellant’s wife was not present when the case was called for trial, or where she was. She may have been on bond and sick, in jail, or in the courthouse yard, or intentionally absenting herself, in the hope that it would obtain appellant a 'continuance of the case even after the court had refused him a continuance upon his affidavit
The question of whether appellant should have had a separate trial at the instance of the Commonwealth’s Attorney was a matter that rested in the discretion of the court. Section 237, Criminal Code of Practice, provides: ,
“If two or more defendants be jointly indicted for a felony, any defendant is entitled to a separate trial.”’
The language of this section is mandatory as to the right of a defendant, jointly indicted with another or others for a felony, to a separate trial. The court; is without power to refuse it to him when demanded. The section is, however, silent as to the right of the commonwealth to separately try one of several defendants jointly indicted for a felony. But, in the absence of any statute denying the commonwealth the right to try separately one of several defendants so indicted, there is, in our opinion, no obstacle in the way of its exercise of such right. It must not be overlooked that at the common law the commonwealth, and not the defendant, in case of joint indictments, had the right of election, subject to the discretion of the court, whether to try defendants jointly or separately. The Code only changes the common law to the extent of also allowing a defendant, in cases’ of joint indictment for a felony, the right to demand and have a separate trial, but does not take away from the commonwealth the right to separately try each of several defendants, jointly indicted for a felony. In other words, the common law, in respect to this right of the commonwealth, has not been abrogated by the Code. It will further be observed that, although section 237, Cr. Code Prac., gives to a defend
It follows, therefore, that a severance may be ordered at the instance of the commonwealth, as of the defendant; and, where justice so requires, the court may order separate trials of its own motion, ■without application therefor by either party. 19 Encyc. Pleading & Practice, 527; 12 Cyc. 506; Clark’s Criminal Procedure, Sec. 154; Barnes v. Commonwealth, 92 Va. 794, 23 S. E. 784; Gathings v. State, 44 Miss. 343; State v. Prater, 52 W. Va. 132, 43 S. E. 230; State v. Roberts, 50 W. Va. 422, 40 S. E. 484; State v. Thaden, 43 Minn. 325; 45 N. W. 614; Curren’s Case, 7 Grat. (Va.) 619.
If right in the above conclusion, it follows that the court above did not err in ordering that appellant have a separate trial.
Appellant complains that the trial court also erred in admitting the testimony of Mrs. Gross and others regarding the statement made by appellant’s wife to her, just before the killing, that if Gross did not release her son she (Mrs. Gross) would be a widow before morning. The statement in question was, it is claimed, incompetent; it being contended by counsel for appellant it was not proved that appellant was present or heard it. A careful reading of the evidence convinces us that this objection is not well taken. Mrs. Gross said the threat was made a few minutes before appellant intervened in the quarrel; but several other witnesses testified that it was made when or about the time appellant appeared on the scene, and the latter failed to deny that it was made in his presence or hearing. We therefore conclude that
We agree with appellant’s counsel that the court should not have allowed Mrs. Ellen Plinchem to testify that two of her sons, who might otherwise have been supposed to have rocked appellant that night, left her house, a few minutes before the shooting, saying they were going to get some fodder for a mule. But her testimony as to what they said was not prejudicial to appellant, as she further stated that, her sons passed through the yard a few minutes later with the fodder. ’ •
Appellant’s complaint as to what was said by the commonwealth’s attorney in argument is not well founded, for the record shows that the objection made by his counsel to the statement was sustained by the court, and we must take it for granted that the court at the time admonished the jury not to consider the excluded statement of the commonwealth’s, attorney.
The court did not err in excluding from the jury the testimony of Jesse Isaacs and Prank Hymer, contained in appellant’s affidavit for a continuance. Statements attributed by the affidavit to three other absent witnesses were read as their depositions..- But, as the affidavit did not set forth the alleged facts to which Isaacs and Hymer would testify, the mere belief that they would, if present, give beneficial testimony in his behalf, did not authorize the reading of what was said in the affidavit with respect to them.
The instructions are not open to the objections made to 'them by appellant’s counsel. The instruction as to self-defense, as well as those relating to all other aspects of the case, are such as have repeatedly been approved by this court, and as a whole gave the jury all the law of the case.