295 S.W. 888 | Ky. Ct. App. | 1927
Reversing.
The appellant, Pal Howard, and one Myrtle Carter (who was the divorced wife of the deceased, but still living with him) were jointly indicted and charged with willfully murdering Ike Carter, the homicide occurring about 7:30 p. m. on August 13, 1925. The first count of the indictment charged defendants therein with jointly committing the crime, and a second count charged a conspiracy between them to commit it, and in pursuance thereto it was committed by appellant and defendant Howard. Upon the latter's separate trial he was convicted of voluntary manslaughter and punished by confinement in the penitentiary for 21 years. His motion for a new trial was overruled, and from the judgment pronounced on the verdict he prosecutes this appeal.
It is urged by his counsel as grounds for reversal: (1) That the court erred in the admission of incompetent testimony introduced by the commonwealth; (2) failure of the court to admonish the jury as to the purpose of certain evidence, and (3) improper remarks of counsel for the commonwealth in his closing argument to the jury. *587
We have given the record careful consideration and have reached the conclusion that neither ground (2) nor (3) is available for a reversal of the judgment. Indeed we discover from the record that the court before concluding the case expressly admonished the jury that the testimony of each rebuttal witness for the commonwealth that contradicted the testimony of appellant's co-defendant, who was introduced as a witness on his behalf, should be considered by it for the purpose of contradicting her if it did do so and for no other purpose. The other complaints under this ground are wholly unsubstantial, and, we repeat, there is no merit in ground (3).
Ground (3) was bottomed upon the fact that the commonwealth's attorney in his closing argument to the jury said:
"I will say this, that the court under the evidence in this case would have been perfectly justified in giving the jury an instruction on the charge of conspiracy, as charged in the indictment."
The court had failed to instruct under the conspiracy charge in the second count of the indictment, presumptively upon the ground that the evidence did not sustain that charge, and it is complained under this ground that the above statement of the commonwealth's attorney was not only erroneous but highly prejudicial. In the first place the court upon the objection being made said to the jury, "The jury will be governed by the instructions given," which, to say the least of it, informed the jury that in reaching a verdict they should not consider the remark of counsel but be guided only by the instructions given by the court and which, as we have said, eliminated the conspiracy charge. Whether, if the court had said nothing to the jury, or had expressly overruled the objections to the remarks of counsel, it would authorize a reversal, is not presented and not determined. It was no doubt improper for counsel to make the remark in view of the fact that the conspiracy charged was eliminated by the court in its instructions, but in view of the court's remark we do not feel authorized to reverse the judgment upon this ground which leaves for consideration only ground (1) in the motion for a new trial.
The incompetent evidence complained of under ground (1) concerned certain statements made by appellant's codefendant before the homicide and in his absence, *588 tending remotely to prove a motive for the killing on the part of appellant's codefendant, Mrs. Carter, and which were admitted by the court in proof of the conspiracy charge, but which were incompetent and inadmissible if no such charge was established, or if the evidence was insufficient to submit that issue to the jury; and the first question for determination is whether the court properly determined that the evidence was insufficient to authorize a finding of the existence of the alleged conspiracy.
We are aware of the rule that a conspiracy may be proven by circumstantial evidence, and that on account of the secretiveness of the alleged conspirators it is frequently the case that the conspiracy cannot be proven except by convincing circumstances. We have said in prior opinions that the circumstances necessary to prove a conspiracy consist of "welding into one chain of a number of links, each in itself inconclusive and insufficient to prove a conspiracy, but, when connected and examined as a whole, sufficient to show it." Anderson v. Commonwealth,
With full appreciation of the rule, supra, it was nevertheless held by us in the Anderson and Pace cases, supra, and that of Lockard v. Commonwealth,
That being true, the complained of testimony as substantive proof against defendant on trial was incompetent, since the only ground upon which it could be admitted was the fact that a conspiracy existed between the person whose statements, acts, and conduct were so proven, and the defendant on trial and for which the latter would be responsible as a coconspirator. If there was no proven conspiracy, then such statements, acts, and conduct of the alleged coconspirator occurring and made as they were in the absence of defendant on trial, would be pure hearsay and clearly erroneous, and which we hold was true in this case as to the evidence complained of under this ground.
The next question is: Was it sufficiently prejudicial as to authorize a reversal of the judgment? In determining this question we deem it not improper to say that the testimony in the record, excluding that complained of under this ground, was sufficient to support the verdict of guilty against appellant. His only defense was that *590 he acted in self-defense at the time he shot deceased on meeting him in the road. His description of that meeting and of the conduct of deceased, which he claims created his right to act in his necessary self-defense, is somewhat hazy as well as unusual and out of the ordinary. A motive was proven for the homicide, as well as some prior statements made by defendant of a more or less guilty nature, and, without repeating the testimony in this opinion, we will content ourselves with saying that under the facts and circumstances disclosed the jury were authorized to discard the self-defense theory and convict defendant of whatever degree of the offense charged and submitted it saw proper. But, excluding the testimony complained of, and notwithstanding such conclusion by us, the jury was also authorized under the testimony as appearing of record, to believe the self-defense story, doubtful as it was, and to acquit defendant upon that ground; or it might have concluded from the testimony that the homicide was not justifiable and that defendant should receive some punishment to be graded by the motive and incentive that prompted him in the commission of the crime. The complained of testimony furnished grounds to inspire the belief in the minds of the jurors that defendant desired to make away with the deceased for the possible double purpose of appropriating to himself the society and unmolested companionship of Myrtle Carter and also to share with her the proceeds of the insurance. After a careful reading of the record, and with some hesitancy, we have reached the conclusion that we cannot say as a matter of law that the incompetent testimony complained of under this ground was not prejudicial.
Wherefore the judgment is reversed, with directions to grant the new trial, and for proceedings consistent herewith.