185 Ky. 424 | Ky. Ct. App. | 1919
Opinion of the Court by
Affirming.
The facts presented by the bill of evidence are few and simple. Appellant and the deceased owned adjoiidng tracts of land. Appellant resided on his land but deceased had his residence upon a different farm about a quarter of a mile from his tract adjoining appellant’s. Appellant and deceased had a disagreement as to the location of the line dividing their lands which resulted in a bad state of feeling between them.
It was the contention of the former that the fence between the lands was not on the true line of division,-but on his land a few feet from the true line, where it had some years previously been removed by his father,-the then owner of this land, to give himself a narrow lane for his own use. On the other hand it was claimed by deceased that the fence in question stood on the true line dividing the lands. A day or two before the homicide appellant removed the fence to what he claimed was the true line, reconstructing it partly of rails and partly of palings. Being displeased at this act deceased, claiming to be acting under the advice of a lawyer previously obtained, left his home on the morning of the homicide with the avowed purpose of going to the disputed line and tearing down the fence erected by appellant, carrying with him: a loaded pistol and an axe. Upon arriving at the place where the fence had been changed deceased proceeded to tear down the fence, using the axe for knocking off the palings. While thus engaged he was shot and killed by the appellant.
The facts thus far stated are undisputed. The only eye-witnesses to the killing were appellant and his sixteen year old daughter, Marie Hogan. According to appellant’s testimony he was plowing in a field near Ms home when deceased began to tear down the fence. Attracted by the noise made by the .latter in destroying the fence, appellant left his-plow and horse, went to Ms residence near, by where he obtained a loaded gun, walked with the weapon in his hand-to within twenty yards of where deceased was tearing down the fence and commanded him to _§top the work of. destruction. ...In re^
On the other hand it was testified by Mrs. Molly Brandenburg, widow of the deceased, introduced by the prosecution, that knowing of her husband’s purpose to tear down the fence and fearing’ it would cause trouble, she followed him from their home to the place of the homicide and was within ten or fifteen steps of him when the shooting occurred, though, unable to see him when shot or by- whom he was shot, as her view of him was entirely obstructed by a house that stood between them. She further testified that immediately following the shooting and upon getting around the house she saw appellant running toward his home and met her husband as he fell in a branch from which he was removed by E. L. McIntosh and Walter McIntosh, tenants of her husband, who quickly reached the scene of the shooting upon hearing her calls for assistance; that her husband died as he was being removed from the branch and that she saw no pistol at the time though she examined his body to see whether he had one; that she did not then know that he had carried a pistol with him from his home, but admitted that Walter McIntosh told her at the place of the killing that her husband had a pistol, which was a few days later returned to her by Ringo Spicer who received it of Walter McIntosh. Mrs. Brandenburg also testified that she heard no conversation, whatever between her husband and appellant before the shot which killed her husband was fired by the latter, though she was convinced that she was close enough to have heard such a conversation if it had occurred. In addition, the witness testified that she heard the knocking made by deceased in tearing
E. L. and Walter McIntosh testified that they were attracted to the place of the shooting by the cries for help of Mrs. Brandenburg and got there about the time of the death of the deceased; that they were prevented from seeing deceased at the work of tearing down the fence and from seeing the firing of the shot which killed him by a house which obstructed their view; that they were about 130 steps from the place of the shooting and heard the noise made by deceased in tearing down the fence from the time it began and the shot, but that they did not hear any conversation between deceased and appellant before the firing of the shot.
They were unable to say, however, whether the noise made by deceased in tearing down the fence was going on at the time the shot was fired or whether it had ceased before the firing of the shot.
The persons named above were the only witnesses whose testimony threw any light upon the homicide or circumstances attending its commission.
Of the numerous grounds for a new trial relied on by appellant in the court below only the following seem to be urged in this court by his counsel for a reversal of the judgment of conviction, viz., that the trial court erred (1) in not granting appellant a continuance, (2) in selecting and impaneling the jury, (3) in failing to instruct the jury upon all the law of the case, (4) in admitting incompetent evidence.
Appellant’s motion for a continuance was supported by his affidavit claiming lack of time for preparation for trial, the absence of certain witnesses and the necessity for opportunity to obtain a survey and plat showing the true location of the disputed line of division between appellant’s land and that of the deceased. Upon the Commonwealth attorney agreeing to admit the truth of the statements attributed to the absent witnesses by the affidavit, the court overruled the motion for a continuance, to which appellant duly excepted,. The indictment under which the steps above mentioned were taken was found and returned by the grand jury May 21st, 1919, the second day of the term, and appellant was placed under ar
It is not perceived that the trial court’s, refusal of-the continuance asked by the appellant constitutes reversible error. As the three absent witnesses named in the affidavit all admittedly live in Lee county and only a few miles from the county ¡seat and six days intervened between the day of appellant’s arrest under the indictment and that upon which the case was set for trial, it would seem that by reasonable diligence exercised during that time he might have procured the attendance of all the absent witnesses at the trial, except perhaps Mrs. Walter McIntosh, the only One served with a subpoena, whose pregnancy, it was claimed, would not have permitted her attendance'. However, it was not shown by the affidavit that there was a reasonable probability of a termination of her pregnancy in time fv?r her attendance as- a witness at the succeeding term of the.- court.
The claim made in the affidavit of the necessity for time to enable appellant to obtain a survey and plat showing the true location of the line of division between his land and that of the deceased, did not entitle him to a continuance of the ease. This admission of evidence as to the location of the line furnished by such a survey or plat would have been incompetent as it could but have
If, however, upon the making of such request or command, by appellant, the deceased drew and presented at him a loaded pistol, and appellant believed and had reasonable grounds to believe that he was then and there in immediate danger of death or great bodily harm at the hands of deceased, or which .reasonably appeared to him was about to be inflicted on him by deceased, and that there was in the exercise of a reasonable judgment no other safe or to him apparently safe means of averting such danger or to him reasonably apparent, but to shoot and kill the deceased, he had the right to do so.
The fact that the court required appellant’s trial to begin on the day of the second indictment was. returned was not, as claimed by his counsel, a violation of the provisions of section 18.7 Criminal Code, for appellant had been arrested and was in custody more than three days before the day fixed for trial.
The second indictment was in effect but an amendment to the first and related back t.o the date upon which the original indictment was returned. Smithers, etc. v. Comlth., 12 R. 636; Bowman v. Comlth., 146 Ky. 486. But aside from the insufficiency of the grounds for the continuance presented by the appellant’s affidavit the Commonwealth’s admission of the truth of the statements to which it claimed the absent witnesses, would, if present, testify,- justified the trial court’s refusal of the continuance. This ruling of the court was also author
“Section 189 of the Criminal Code is mandatory, and in all cases where a continuance is asked at the term of court at which the indictment is returned; and a sufficient affidavit is filed in support of said motion, the court must grant the continuance, unless the attorney for the Commonwealth consent that the statements in the affidavit for a continuance, as to what the accused would prove by the absent witnesses, if present, are true. The provisions of this section, however, are applicable only where a'continuance is sought at the term at which the indictment is returned. In all other cases the attorney for the Commonwealth is only required to consent that the statements in the affidavit as to what the absent witness would say may be read to the jury as the deposition of such absent witness. Clearly, the purpose of the legislature in enacting this Code provision was to prevent one accused of a crime from being pressed to trial without having been given an opportunity to secure the attendance of his witnesses and prepare for his defense. Until an indictment is returned, it is presumed that the accused would not know the exact nature of the offence for which- he is to be tried; hence the wisdom and necessity of this statute. When properly applied, it insures to the accused a reasonable time within which to secure the attendance of his witnesses. This is all it was intended to do. It should not be so applied as to enable the accused to harass the Commonwealth by unnecessarily and unreasonably delaying the trial.”
If there- had been a showing made by appellant- -that the full effect and benefit to him of the testimony of his absent witnesses could not be obtained without their personal- presence at the-trial and an oral examination of them'before the jury, it .would, have given stronger support to 'his claim of right to the continuance. But as there was no such showing, we are clearly, of the opinion that the refusal of the continuance by the court was not an abuse of its discretion.
As appellant’s complaint of the trial court’s action in selecting and impaneling the jury by which he was tried is a matter which section 281, Criminal Code, prevents this court from reviewing, consideration thereof will be omitted.
The instructions given by the court are not criticised by appellant’s counsel. He only complains of the failure
The alleged incompetent evidence complained of was that given by Green Bailey regarding the division line. Bailey was introduced by the Commonwealth at the conclusion of appellant’s evidence and it is contended that his testimony was evidence in chief, which should have been introduced before that of appellant. The testimony of Bailey was not evidence in chief, but was properly introduced in rebuttal, as the first evidence on the subject of the disputed line was introduced by appellant.
Moreover, if it had been evidence in chief as claimed, it was in the discretion of the court to admit it as was done; and it is not made to appear from the record that its admission was an abuse of discretion.
We cannot agree with appellant’s counsel that there was no evidence to support the verdict. According to the testimony of appellant and his daughter, in killing deceased he acted in self defense, but according to that of the latter’s widow the killing was unnecessary, for her testimony was to the effect that no demand was made by appellant of her husband to stop tearing down the fence and that he shot the latter while engaged in the work of destruction, without warning him that such was his purpose.
It was the province of the jury to pass on this conflicting evidence and determine the truth of the matter, and as there was evidence to support the verdict it should not be disturbed. Being unconvinced from anything appearing in the record that appellant did not have a fair trial, the judgment is affirmed.