188 Ky. 391 | Ky. Ct. App. | 1920
Opinion op the Court by
Reversing.
The grand jury of’ Bourbon county returned an indictment agáinst the appellant, Oscar N. Johnson, charging him with murdering Walter Rice, which occurred at about 7 p-. m. on January 29, 1918, in the restaurant of A’Efern & Burton, located at the corner of Tenth and Pleasant streets in the city of Paris, Kentucky. Appellant entered a plea of not guilty, but upon his trial the jury convicted him and fixed his punishment at death. His motion for a new trial having been overruled, he prosecutes this appeal, relying upon, three grounds for a reversal: (1) Error of the court in failing to grant him a new trial because of newly discovered material evidence which he did not and could not discover’ before the trial by the use of ordinary diligence. (2) Misconduct of the Commonwealth’s attorney in Ms closing argument to the jury, and (3) actual bias of two of the jurors who sat in the case, as shown by the affidavits of witnesses discovered after the trial that, the two jurors had formed and expressed an opinion adverse to the appellant before being accepted on the jury.
• A disposition of ground (1) requires a brief- statement-of the substantial facts as shown by the record. Appellant was about thirty years of age and unmarried, while the'deceased was thirty-six years of age, married, and. resided at Livingston, Kentucky. They were both employed by the railroad company, appellant as a brakeman, and the deceased as a fireman. They were and had been acquainted with each other for some four- or five years. They frequently met, and there is nothing in the testimony showing that there was -any. ill-feeling between them or that they sustained to each other anything less than-the most cordial relations.
About eight o’clock on the morning, appellant being as he says more or less disturbed over the prospects of being taken into the army took one drink of whiskey given him in a barber shop, and later in the day he bought some from a bootlegger and took several drinks of that. About four o ’clock in the afternoon he and the ' deceased met at the restaurant where the homicide occurred, and according to the testimony of some five or six witnesses introduced by the Commonwealth they were talking pleasantly together, and in the language of the witnesses were “going in and out frequently,” when about seven o’clock, while the deceased was talking to a drummer, and was eating some peanuts, the appellant came into the restaurant and shot him twice, without any words passing between them. Immediately Mr. Burton, one of the proprietors of the restaurant, and as soon as he could, grabbed the appellant, who still had his pistol in his hand, and the latter said: “This man has said enough for me to kill him.” Burton asked for a surrender of the pistol, but appellant said to him, “No, I am not going to shoot any more.” He then left the restaurant and went to the barber shop about one square distant and inquired if his nephew, a young Mr. York, was there, or had been there. He then came back to the restaurant with his pistol in his hand and requested that the police be telephoned for because he wanted to surrender. He was taken to the jail, where he has remained since.
In explanation of this apparent premeditated murder, the appellant testified that he had known the deceased as above stated; that he was the youngest of a family of thirteen children, the most of whom were girls, and that he was very much attached to his brothers and sisters, particularly to the latter; that about four years prior to the homicide the deceased had worked as an engineer at the plant of the Bond Lumber Company at Bonds, Kentucky, in the neighborhood of which the appellant,
While some few witnesses, who are shown not to be on the best terms with appellant, testified to his bad character for peace and order, the greater weight of the testimony is that he was both peaceable and orderly in his association with his fellows; that he was industrious and energetic; that he possessed an excitable nature, was very much attached to his sisters, and would naturally become angry when their reputations were assailed.
In support of his motion for a new trial upon the ground of newly discovered evidence, appellant filed the affidavits of Thomas Gregory and J. B. Barrett, both of whom were unacquainted with either the appellant or deceased, and in which affidavits they state in substance that they were both in the city of Paris on the day in question, and that they were on their way to the depot, when, between six and seven o’clock, they passed the restaurant in question and saw two men standing in front of it near a telephone pole, and that in passing they heard the substance of the conversation testified to by appellant as having occurred between him and the deceased just in front of the restaurant, with reference to Mrs. York. The two affiants, after getting to the depot, and before the arrival of the train upon which they expected to depart, heard of a shooting down in town, but they did not connect it with the conversation they had heard, and went away. With these affidavits there was also filed that of the appellant as well as one by his attorney in which it appears that appellant had stated to his attorney that persons passed on the pavement at the time of that conversation but that appellant did not know any of them and the attorney had made a number of visits to surrounding towns and had exercised extraordinary diligence to discover some one who might have passed
After appellant was convicted he addressed a pamphlet to the public in which he depicted his unfortunate situation and appealed for sympathy, as well as financial aid in prosecuting his defense, and one of .these pamphlets seems to have come to the notice of Thomas Gregory, and from the statements made in it Gregory said that he became convinced that the conversation which he and Barrett heard in front of the restaurant was the one mentioned by appellant, and he afterwards divulged it and in that manner his and Barrett’s testimony was discovered, and all of which occurred after the trial. So that there neither can be nor is there any complaint concerning the question of diligence in the discovery of that testimony. The only questions are — is it- relevant and material, and if so, is it to be rejected because it might be considered cumulative? As a general proposition courts are somewhat reluctant to grant a new trial upon this ground, because it is one which opens a ready door 'not only for the commission of perjury, but for the perpetration of fraud by the party relying upon it. Notwithstanding, however, such reluctance, the courts will unhesitatingly grant a new trial for newly discovered evidence,-when on account of its materiality and probable effect a manifest injustice would be committed to disallow it, and it may also here be stated that while this court, as well as others, announce and apply the general rule that a new trial will not be granted for newly discovered evidence which is cumulative only, still that rule is not of universal application, and where the newly discovered evidence, although to some extent cumulative in its nature, is of so controlling a character as that it would possibly change the verdict, it would be prejudicial error to refuse a new trial based on this ground. For authorities sustaining these general propositions, we refer to 16 Corpus Juris, 1191-1201; 20 R. O. L. 289, 296, 297; Gravitt v. Commonwealth, 184 Ky. 429; Crouch v. Commonwealth, 172 Ky. 463; C. N. O. & T. P. Ry. Co. v. Cecil, 164 Ky. 377, and other Kentucky cases cited in the notes of the publications referred to.
The defendant in the Crouch case was convicted for killing a man by the name of Wills. The -shooting occurred near the depot, and when it was practically dark. The son of deceased had'been arrested by officers for some misdemeanor, and the father was. making demon
“The testimony which Ferguson proposes to give bears upon the decisive facts of the homicide and from them the guilt or innocence of appellant can be most certainly determined. It is not cumulative or for the purpose of impeaching any witness who testified upon the trial. The witnesses who testified upon the trial, with the exception of Freeman Wills., deposed that they either did not or could not, at the time the mortal wounds were given, see the appellant and the deceased, and it is reasonable to conclude that other persons, if any there were, who may have been about the depot did not and could not see what transpired. The testimony of Ferguson will strongly corroborate that of appellant.”
In the Cecil case, this court, quoting from the case of Torain v. Terrill, 122 Ky. 745, said:
“The rule that newly discovered evidence which is merely cumulative is not ground for a new tiial allows of seme exceptions. For instance, the rule does not apply if the newly discovered evidence, though emulative, is sufficient to render clear that which was before a doubtful case, or if it is of a conclusive or decisive character, or of so controlling a character it would probably change the verdict. . . . Applications for a new trial are addressed to the sound discretion of the court, to be exercised according to the rules and usages of law, and the court should regard the substantial justice of
To the same effect are the cases of I. C. R. R. Co. v. Wilson, 31 Ky. Law Rep., 789; Adams Oil Co. v. Stout, 19 Ky. Law Rep. 758; Johnson v. Stephens, 95 Ky. 128; Berberich v. Louisville Bridge Co., 20 Ky. Law Rep. 467, and Owsley v. Owsley, 25 Ky. Law Rep. 1186. If the 'newly discovered testimony is material upon any vital issue in the case, and it is otherwise admissible, the fact that it is not directed to the establishment of the defendant’s innocence of all crime will not cure the error in refusing to sustain the motion for a new trial therefor if the newly discovered evidence is directed to an issue which, if established, would reduce the degree of the crime as well as lessen the punishment inflicted. The question of supreme interest to a defendant in a criminal prosecution is, first, to establish his innocence of any crime, but if he should be unable to do that, he is next interested in reducing his offense to the lowest one for which he could be convicted under the indictment, and in capital cases the one is about of as much importance to him as the other. Thus, in 16 Corpus Juris 1208, the text says: .“Where newly discovered evidence will probably change the result to a verdict more favorable to defendant, a new trial should be granted.” Crouch v. Commonwealth, supra, and Brooks v. Commonwealth, 144 Ky. 407. In the same volume of Corpus Juris on page 1209, in speaking of the rule with reference to capital cases, it is said: “In a capital case even a grave doubt created by the newly discovered evidence may, in the interest' of justice, require a new trial. Where the new evidence is not alone sufficient to require a new trial, nevertheless it may be considered in connection with other errors and irregularities on the trial as bearing on a defendant’s right to a new trial.” Whether the effect of the conversation immediately preceding the killing testified to by appellant alone, but which he seeks to corroborate by the discovered witnesses, would be sufficient to authorize a verdict of acquittal is a question with which we are not concerned, it being exclusively for the determination of the jury. But can we say that the establishment of that conversation would not affect the verdict in either reducing the severity of the punishment or the degree of guilt? Manifestly not. To do so would plainly ignore our knowledge of human nature obtained from observation and
Much evidence in the way of affidavits was introduced by both sides touching the character of the affiants Gregory and Barrett, and we might say that it was about equal in volume and weight, but whether their testimony is or not credible will be a question for the jury upon another trial, and not one for us to determine at this time.
To sustain ground (2) urged for a reversal, the bill of evidence shows a number of remarks made by the Commonwealth’s attorney in his closing argument to the jury, of which complaint is made, but the only one we deem necessary to notice is that one charging defendant with being a “bootlegger.” He also charged appellant with being a “pistol toter,” and there was. some evidence introduced to establish his reputation for that offense. This, however, was given by witnesses who were not on friendly terms with him. He admitted having the pistol on the occasion complained of, but explains that in finishing his run, which was Paris, on the evening before, he left his pistol in his. overcoat pocket, and which he carried for the purpose of protecting himself in going from the railroad yards to his boarding house against waylayers and robbers with which the community was infested at that time. It is doubtful whether it is competent to prove one’s reputation for a specific offense, but waiving that, we are convinced that there was absolutely no testimony in the record, direct or circumstantial, supporting the charge made by the Commonwealth’s attorney that appellant was a boot
What has been said renders it unnecessary to discuss or determine the questions relied on by ground (3).
For the reasons stated the judgment is reversed with directions to grant the defendant a new trial, and for proceedings consistent with this opinion,