114 Ky. 372 | Ky. Ct. App. | 1902
Opinion of the court by
— Reversing.
Appellant, James B. Howard, having been jointly indicted with Henry Youtsey, Berry Howard, Harlan Whittaker, and Richard Combs for the murder of William Goebel, was, upon separate trial, found guilty. Upon the former appeal of this case, 110 Ky., 356, 22 R. 1854 (61 S. W., 756), enough was written in the opinion, and in the separate concurring opinions of Chief Justice Paynter and Judges Hobson and White, to give a general idea of the circumstances surrounding the murder, as disclosed by the record, and to show the contentions, on behalf of the Commonwealth and the accused. Upon that trial the contention of the accused was that he had not been in Frankfort for over a year, before the morning of the assassination, except when summoned as a witness in th>e federal court; that he wished to obtain a pardon from Taylor, who had received a certificate of election as governor, for a crime whereof he stood indicted in the Clay circuit court; that he was notified by one of his friends that the contest over the governorship between Taylor and Goebel would soon be decided, and probably in favor of
After Howard’s direct examination, in which he detailed the circumstances of his trip, he was asked, on cross-examination, and compelled, against objection, to answer, the question “For what purpose were you going to Frankfort?” He replied: “I came here to get a pardon, — to try to get one. Q. To get a pardon from whom? A. From Governor Taylor. Q. For what?” To this question the court sustained an objection. He was compelled to state, against objection, what was contained in a letter read to him by Bev. White from the latter’s brother, viz., that the latter thought Taylor would be ousted in a few days, and if Howard wanted to get a pardon he had better come on and see him before he was ousted, as well as some matters in regard to Mr. Parker assisting Howard in seeing a Laurel county jury about assisting him in obtaining a pardon. The witness Feeny, having on direct examination stated that he had known Howard for some three or four years, was compelled to answer that he first met him in the Rich
Certain objections to testimony are urged upon this appeal, which were argued, and must he, presumed to have been considered, upon the former appeal; but there are some objections urged which should be considered:
The witness J. B. Matthews was asked if, at a speaking in Somerset before the election, in the fall of 1S99, he said, in substance: “Goebel will never be governor. Some one will kill him first.”' While this might be permissible on ci’oss-exandnation, it was clearly collateral. It occurred long before the date at which it is claimed any conspiracy was formed, and the Commonwealth should not have been permitted to prove by the witness Epperson that Matthews made the statement. Whether this was prejudicial, however, is doubful.
The witness Sanderlin, called for the Commonwealth, on his re-examination was permitted to state, against objection, that Robert Webb had a conference with Beverly White in the courtyard, after which Webb told the witness that White would give him $50 if he would leave. This would seem to be hearsay.
It is also objected that the Commonwealth was permitted to x*ead the legislative journal, showing that in 1900 Republican members of the Legislature voted for the witness Stubblefield for doorkeeper; the evidence being introduced
It is objected that Chad well testified that, in the presence of himself and one Jones, accused said that Goebel “was shot a bad shot, or a deadener; that he saw them taking him olí, and lie thought he was shot a bad shot.” After Howard denied having such a conversation, Jones was introduced in rebuttal, and, against objection, permitted to detail the same conversation. While this testimony of Jones was properly primary testimony, and should have been introduced in chief, some discretion is necessarily allowed the trial court as to such matters, and this hardly amounts to an abuse of such discretion.
There was testimony tending to show that the accused had been recognized running from the Executive building, and at the doorway, with a black, stubby mustache. For the defense, the accused and other witnesses testified that he had been smooth-shaven for a year or more before the killing. The Commonwealth was permitted, in rebuttal, to introduce testimony showing that some months before th'e murder the accused had possession of a false mustache. This seems to have been perfectly competent rebuttal testimony.
Upon the former appeal it was elaborately argued that, inasmuch as the indictment charged the murder to have been committed by the accused acting jointly with certain named co-defendants and others unknown-to the grand jury, and contained no averment of a conspiracy, no testimony should have been permitted, the object of which was to show the existence of a conspiracy, and no testimony as to the acts or declarations of the supposed co-conspirators. It
While the instruction which was in fact asked upon this subject was not framed in accordance with the rule in this State, the fact, remains that an instruction was asked directly upon this subject, and the, court should have given the whole law of the case. And while upon the former appeal the question of an instruction upon this point was not presented or considered, and the only questions considered upon the instructions were as to the propriety of those which were in fact given, we find the doctrine' now presented was distinctly recognized in the opinion. Said the court upon the former appeal, considering testimony as to the, acts and declarations of others who were either co-defendants or supposed to be co-conspirators: “Of course, the testimony of neither of these witnesses has any bearing upon the guilt or innocence of the, defendant, Howard, unless the Commonwealth, by other testimony, establishes a guilty connection between the defendant and Youtsey, and shows to the satisfaction of the jury either that he fired
Considerable argument is devoted to the proposition, that the law presumes the accused to be a person of at least ordinary good character; that this presumption continues throughout the case, and is evidence in favor of the accused ; and that an instruction should have been given upon this subject. As an abstract proposition of law, there is no doubt of the correctness of the proposition, which is supported by innumerable authorities. Whether it should be given in an instruction to the jury is another question. The only authorities cited upon the proposition that an instruction upon this point must be given are cases in the federal courts (McKnight v. U. S., 38 C. C. A., 115, 97 Fed., 210; Mullen v. U. S., 46 C. C. A., 22, 106 Fed., 894), and a case from Texas (Stephens v. State, 20 Tex. App., 255), in which case last named it was held that as counsel for the State improperly discussed the character of the defendant, which was not put in issue, the court should have given the jury a special charge upon the subject of good character, in order to prevent, as far as possible, any prejudice to the defendant by reason thereof. AsUo the cases in the federal courts, in one of which the case was reversed because of comments by the district attorney similar to those condemned in the Texas case, it must be remembered
For the reasons given, the judgment is reversed, and cause remanded, with directions to award appellant a new trial, and for further proceedings consistent herewith.
Judge Guffy concurs in the reversal for the sole reason that the court did not give the instruction indicated in the opinion, but holds that no other error was committed by the court to the prejudice of the appellant. Judges Paynter, White and Hobson dissent.