191 Ky. 485 | Ky. Ct. App. | 1921
Opinion op the Court by
Reversing.
Upon his trial tinder an indictment for voluntary manslaughter wherein he was accused of killing Dewey Smith, the appellant Russ Jones was convicted and his punishment fixed at a term of five years ’ confinement in the penitentiary, upon which judgment was pronounced. Defendant’s motion for a new trial, which contained about fifteen reasons why it should be granted, was overruled and he prosecutes this appeal. Many of the specified reasons in the motion are extremely technical and, we think, wholly immaterial, and in the course of this opinion we shall refer to and consider only those which we deem worthy of notice.
The facts of the ease are comparatively short and there exists but little, if any, material contradiction in the testimony of the witnesses. The killing occurred between 9 and 10 o’clock on the night of October 2,1920, on a public road in Whitley county. There was a bright moonlight, but the place of the killing was in the shadow of ¡a tree, thus preventing some of the witnesses, except those immediately present at the place of the shooting, from seeing exactly what occurred. Hence, the only witnesses who saw or pretended to testify as to what happened at the time of the shooting were the defendant and Grace Worley, a young lady between 15 and 16 years of age. Then© had been a box or pie party at Thomps White’s school house in the earlier part of the evening, but it was over with by about 9 o’clock, and the attendants started for their respective homes. Defendant and on© or two others went to that party, travelling horse
One of the grounds urged for a new trial is misconduct of counsel, hired to assist the prosecution, which misconduct consisted in asking Miss Worley, on cross-examination, highly improper questions and in introducing as a witness in behalf of the Commonwealth Jack Stephens. One of the questions asked Miss Worley, about which complaint is made, is this one: “Did you not go to the grave of the deceased one time and there state in the presence of Mary Smith, Nellie Huddleston, Dora Smith and Jesse Huddleston and say this in words or substance — ‘Poor Dewey, I didn’t tell the truth about how it took place or how come him to be killed by Jones but when it comes time I will tell the truth about it?’ ” She answered that she made no such statement. Other questions purporting to lay the foundation for impeaching the witness were also asked with like answers. These supposed impeaching witnesses who were named in the question were present at the trial and none of them were introduced or offered to be introduced to prove the impeaching statement and the record is silent as to the reason, if any, why they were not introduced. If counsel was deceived by them as to what they would testify he made no effort to manifest that fact by anything appearing in the record. This furnishes grounds for the suspicion that the purpose of the question was to damage the credibility of Miss Worley and to weaken her testimony in the minds of the jury by means of this wholly unwarranted “smoke screen,” under the belief that they would conclude that “Where there was smoke there must be some fire.” If such was the purpose of counsel his conduct was, to mildly put it, most highly improper, a fact.
The witness Stephens said that he was at a school fair some two months before the killing and while there he met defendant whom he scarcely knew and with whom he had never conversed before, and that defendant took the witness to one .side when this occurred: “He said he didn’t know how mean he was and never would know until he killed some d — s — of a b — ; said he was going to kill the first one that fooled with him and if he couldn’t get him to fool with him he would kill him one. anyhow.” The testimony was objected to, but the objection was overruled and it was admitted. At the close of all thue evidence, however, the court withdrew the testimony of that witness from, the jury and directed them not to consider it. That the alleged indefinite and remote threat testified to by that witness was incompetent there can be no question. 21 Cyc. 922; Johnson v. Commonwealth, 9 Bush 224; Hollingsworth v. Warnock, 112 Ky. 96; Whitaker v. Commonwealth, 13 Ky. L. R. 504; Commonwealth v. Hoskins, 18 Ky. L. R. 59, and Cardwell v. Commonwealth, 20 Ky. L. R. 496. Since, however, this testimony was withdrawn from the jury before the case was submitted to it, under the doctrine announced in the recent case of Welch v. Commonwealth, 189 Ky. 519, and cases referred to therein, the error in its introduction was no doubt cured and a reversal would not be ordered therefor; but
One of the grounds for a new trial was newly discovered evidence since the trial of which the defendant had no knowledge, nor could have discovered it by ordinary care before the trial. In support of that ground he filed the affidavits of William G-oins and John Groins. William G-oins stated in his affidavit that about the last of July, 1920, he had a conversation with deceased, Dewey Smith, in which he said that “If he (Smith) ever caught Jones (defendant) with his girl across the river, he would fix him, that it would do him good to kill him.” John Goins stated in his affidavit that upon another occasion he met the deceased in Williamsburg where deceased said to him: “That Russ Jones had been going with his girl, that she had been attending meeting over at the place and asked me if I had ever heard Russ Jones say anything about him. Affiant told him that he had not and he then said that if he ever caught him with his girl again that he would use this on him, showing him (affiant) a pistol which he (deceased) had in his front pants’ pocket.” It is shown that these witnesses never communicated those threats to defendant or his attorneys and he knew nothing of them until after the trial. That they were relevant and pertinent under the facts of this, record there can be no doubt. In the case of Newton v. Commonwealth, 31 Ky. L. R. 327, similar uncommunicated threats made by the deceased are declared to be admissible, the court saying : ‘ Threats, though uncommunicated, may be admitted to prove the ill feeling of the person making them toward the person threatened, or, where the matter is in issue, to show who began a conflict resulting in homicide. (Miller v. Commonwealth, 10 Ky. L. R. 672, 89 Ky. 653; Wheeler v. Commonwealth, 27 Ky. L. R. 1090, 120 Ky. 697).” See also Marshall v. Glover, 190 Ky. 113.
Considering the errors referred to, altogether, we have concluded that the defendant has not had a fair and