170 Ky. 763 | Ky. Ct. App. | 1916
Opinion op the Court by
Affirming.
Appellant, Marvin Knight, and Marion Samples, were indicted by the grand jury of Muhlenberg county for banding themselves together and going forth with others, unknown to the graud jury, for the purpose of intimidating and alarming W. H. Chumley and others in violation of section 1241a of the Kentucky Statutes.
Appellant being tried alone was convicted and his punishment fixed at confinement in the penitentiary for not less than one year nor more than three years. His motion for a new trial having been overruled, he is seeking a reversal here; (1) Because of the rejection of certain evidence offered on his behalf; (2) error in refusing a new trial upon the ground of newly discovered evidence, and (3) because the verdict of the jury is against and not supported by the law and the evidence, the last of which we will consider first.
“Q. Was that Marvin Knight? A. Yes, Marvin Knight. Q. Is that the man there? A. Yes, I knew him as well as I know him now; I know I wasn’t mistaken. Q. Was he masked?. A. No, in his shirt sleeves and had ón a straw hat. Q. How long had you known him at that time ? A. Over a year; been working there over a year. Q. Have you any doubt about that being him? A. No, none in the world; I am sure it was him; I was talking to him., and I know it was him.” . .
Mrs. Chumley testified in substance the same as- her husband except that she did not recognize any of the participants, but that she did hear her husband say to Marvin Knight, calling his name, in substance what her husband testified he said to him.
Chumley’s account of the disturbance is corroborated by other witnesses, but no other witness testified that appellant was present or participated in the outrage.
Appellant denied that he was present, and to establish an alibi introduced as witnesses, besides. himself, Jim Kirby, Mrs. Polly Jenkins, Miss Della Jenkins and Mrs. Ella. Kirby, all of whom, except Mrs. Polly Jenkins, testified that within five or six minutes after the disturbance had ceased they went to appellant’s home and found him there in night attire. Mrs. Polly Jenkins, appellant’s mother-in-law, testified before the examining trial and lier testimony, as given then, was read to the jury, in which she stated that she was staying at appellant’s home that night; that she was awakened during the disturbance; that she saw and heard appellant talking to his wife during the time of the disturbance; that he was not out of his home during that time.
Because of the fact that appellant’s testimony, in numerical strength, exceeded that of the Commonwealth, appellant insists that the verdict is flagrantly agáinst the evidence,- and for that reason he is entitled to a reversal. To this we cannot agree, as it is the peculiar province of the jury to weigh the evidence, fix its value and determine an issue of fact such as this, and this court is not authorized to reverse a judgment based upon such a verdict simply..because the finding is against, the
None of these witnesses were permitted to explain why they went to appellant’s home at that time, and the exclusion of this eyidence is the first reason for reversal urged upon us by appellant. His counsel insists that this evidence was competent, and clearly it was, but we cannot agree that its exclusion was prejudicial to .appellant. It is shown in the evidence that these witnesses lived fully as far or farther from appellant than he lived from Chumiey’s home, and that after the disturbance ceased they had to dress before starting to his home. This evidence accepted at its face value does hot contradict Chumley’s evidence that appellant was present and participating during a part of the disturbance, because he could have been present during the whole of the disturbance and reached his home before these witnesses, so that their testimony was not of controlling character, and that they were not permitted to explain how they happened to go to his home cannot be said to have been prejudicial to appellant. Their evidence only establishes that appellant was in his home, which was only ■two hundred yards from the home of Chumley, about five minutes after the end of the disturbance, and is not in conflict with any of the Commonwealth’s testimony.
The other alleged newly discovered evidence is the affidavit of several witnesses that they knew the general reputation in that neighborhood of the Commonwealth’s witness, Wm. Chumley, for truth and veracity, and that it was bad. If such evidence as this could furnish a reason for a new trial every defendant could always have two trials, one upon the evidence of the facts and another to test the character of the witnesses giving the evidence, and he would thus be charged with no duty of diligence upon the first trial as to the character of the Commonwealth’s witnesses. This is not the law, and this court has frequently held that a new trial will not be granted on the ground of newly discovered evidence which tends only to discredit or impeach a witness. South Cov. & Cin. St. Ry. Co. v. Lee, 153 Ky. 621; L. & N. R. Co. v. Tinkam’s Admx., 19 K. L. R. 1784; Louisville Ins. Co. v. Hoffman, 24 K. L. R. 980.
Perceiving no prejudicial error upon the trial, the judgment is affirmed.