273 S.W. 511 | Ky. Ct. App. | 1925
Affirming.
One Saturday afternoon in July, 1924, between four and five o'clock, the appellant and defendant below, Edward Lake, who was about twenty-nine years of age at the time and married, shot and killed his wife and Mrs. Mary A. Smith. The latter was first mortally wounded by defendant and ran out of her business house, which was a part of her residence, and fell on the street car track, from which place she was afterwards taken to the hospital and later died. Immediately defendant pursued his wife across the street into a grocery, which she had sought as a place of refuge from his maddened condition, and in it he shot her several times and killed her instantly. He was indicted separately for each murder and on this trial for murdering Mrs. Smith he was convicted and sentenced to death, and from the judgment pronounced on that verdict he prosecutes this appeal, urging through his counsel three alleged grounds for a reversal of the judgment, which are, (1) erroneous rulings of the court in the selection of the jury that tried him; (2) the admission of improper testimony over his objections offered by the Commonwealth, and (3) improper remarks and argument of counsel for the Commonwealth. We will, consider them in the order named.
1. It is conceded by counsel for defendant in their brief, and in oral argument of the case before this court, that under section 281 of the Criminal Code we have held, in cases innumerable, that it denied to a defendant in a criminal prosecution the right to appeal from the decisions of the trial court "upon challenges to the panel, and for cause." We suppose that it would be no exaggeration to say that since the adoption of the Criminal Code, with that section in it, we have upheld and applied it in at least one hundred cases and, consequently, have declined to review the decisions and rulings of the trial court in criminal prosecutions upon questions touching the empaneling of the jury and challenges to prospective jurymen. We so held, in the great number of cases coming before us, upon the all sufficient ground, that, by the express terms of that section the defendant was denied the right to appeal from the decision of the trial court upon those matters. Notwithstanding that history, learned counsel for defendant in this case insist (and which they say is the first time the point was ever raised) that the section is void because in conflict with section *835 11 of our Constitution saying, "and in prosecution by indictment or information, he (defendant) shall have a speedy, public trial by an impartial jury of the vicinage."
If section, 281, as it relates to the matters now under consideration had the effect to destroy or impair the quoted constitutional guaranty, then there would be grounds for counsel's contention, and it would not only be our duty but our delight to sustain it. But the error at the foundation of that contention is, that it assumes that the constitutional guaranty includes the right of the defendant in a criminal prosecution to an appeal from the judgment of the trial court to whatever appellate court may be established in the jurisdiction; when the fact is that it, and all other constitutional guaranties, are satisfied when the one for whose benefit they are given has had his day in court, with an afforded opportunity to present and rely upon his particular constitutional right, and when such a hearing has been had by a duly constituted court of original jurisdiction the limit of the constitutional protection is reached, unless there is a further one guaranteeing the right of appeal. We do not have the latter in our Constitution, nor is it in the federal Constitution so as to be applicable to criminal procedure in the respective states of the union, and the universal holdings of all of the courts, as well as the pronouncements of all text writers, is to the effect that the denial of the right of appeal is no infringement against any constitutional guaranty unless there is also one giving the right of appeal. We have so held everytime the question has been presented to this court. One of the latest cases in which we did so is McLaughlin v. Barr,
The reason for such universal accord in the courts is that a defendant in a criminal prosecution or a litigant in a civil cause is entitled to but one day in court and if he sustains the misfortune to be tried before an incompetent court he is unfortunate but must submit, since there is no constitutional guaranty that he shall be furnished an infallible court to try his case.
Indeed, in some jurisdictions, and which was true with us up to July 1, 1854, no appeal whatever is allowed to a defendant in convictions of a felony. Deaton v. Commonwealth,
The same question as to the constitutionality of section 281 of our Criminal Code was raised in the case of Howard v. Commonwealth,
2. The first testimony offered and introduced by the Commonwealth of which complaint is made under this ground was given by a policeman and other witnesses and related to the conduct of defendant toward his wife and his demeanor as a member of his household. Only two occasions, shortly prior to the killing, were referred to in that testimony and the court admonished the jury as to the purpose of its introduction and warned them that it was not to be considered as a substantive fact as to the guilt or innocence of defendant on the charge under investigation. We are by no means convinced but that such testimony was competent to prove defendant's state of mind towards his wife and a corresponding one towards her associate, Mrs. Smith, at whose house the killing occurred and to which Mrs. Lake had repaired after leaving her husband on Tuesday before the Saturday of the killing. But, however that may be, counsel for defendant, when he was on the stand, proved by him without *839 objection from the Commonwealth that he was a most dutiful, kind and affectionate husband and greatly in love with his wife; that he did not drink, nor did he disturb at any time or any manner the peace and quiet of his home. Perhaps the purpose of that testimony was to attach some blame on Mrs. Smith by insinuating that she had alienated the affections of defendant's wife; but whatever its purpose, it was certainly competent for the Commonwealth to disprove it by rebuttal testimony and to show that instead of Mrs. Smith or defendant's wife causing his domestic troubles he himself was the author thereof.
It is also insisted under this ground that it was incompetent for the Commonwealth to prove defendant's bad moral character as affecting his credibility as a witness, and it is most earnestly insisted that proof of defendant's bad moral character, after he has testified in his behalf, is not allowed to be introduced for the purpose of impeaching him as a witness. Notwithstanding that contention, section 597 of our Civil Code expressly says that a witness may be impeached "by evidence that his general reputation for untruthfulness orimmorality renders him unworthy of belief," and we have held in an almost unlimited number of appeals in criminal prosecutions that the provision of that section of the Civil Code applied to the practice in criminal prosecutions and that it was applicable to a defendant after he offered himself as a witness in his behalf and testified in the case. Bennett v. Commonwealth,
But it is also urged that the proven reputation was by witnesses who had not lived near to or associated with defendant for a period of two and half or three years and related to his moral reputation while he lived at Harrodsburg, Kentucky, before he moved to the city of Louisville. We will not take up time nor space in discussing this objection, since we have held that reputation may be proven for a much longer past period than was done in this case and we are convinced that the testimony was not objectionable on that account. The defendant had not lived in Louisville at one place long enough to establish a reputation, but in any event the time to which it related was not so remote as to destroy its competency.
3. Lastly, it is insisted that the remarks of counsel for the Commonwealth were so prejudicial as to authorize a reversal of the judgment. We will not set out all of the remarks made by the Commonwealth's attorney in his argument to the jury and to which objection was made. No doubt the strongest one, as counsel conceives, for he argues it most, was a reply which counsel made to an objection from defendant's counsel. The prosecutor was referring to testimony by a witness for the Commonwealth when he was interrupted by an objection from defendant's counsel saying "Lake denied it" and the Commonwealth's attorney replied, "Lake did, but Mr. Smith testified to it. You can't expect Lake to admit it because it hurts him." It is the latter statement, "it hurts him," that counsel seem to think is all sufficient to authorize a reversal of the judgment. But we cannot agree with him, not only because the remark was largely immaterial if improper, but also because it was not improper. We have frequently laid down the limitations of prosecuting counsel in his argument to the jury and have said that in the heat of discussion it is almost impossible to prevent inapt, irrelevant and possibly incompetent statements; but so long as counsel kept within *841
the record and discussed the testimony in the case and drew legitimate inferences from proven facts and circumstances he was within his rights. The latest case dealing with the practice is that of Bolin v. Commonwealth,
Because of commendable zeal of counsel who briefed the case, but who did not defend him at the trial, and because of the distressful consequences to defendant, we have tried to give this case most careful consideration. Our legislature has enacted that one found guilty of premeditated murder may be punished with death. Strange as it may seem there are people who will continue to commit it notwithstanding the existence of that statute. If a case could be imagined where the severest punishment was deserved this record discloses that this is one of them. Two innocent women, one of them his wife and the mother of his two small children, were assassinated by defendant without any sort of cause or excuse. True, he attempted to show a sort of dethroned mind, but the effort was so weak as to call for an acknowledgment on the part of counsel that it failed. After its elimination, by the verdict of the jury, to which it was submitted in an appropriate instruction, the case is wholly barren of anything approaching a legal excuse or, possibly, not even a sympathetic one. Having so found our duty is ended, since we are without authority to interfere, even were we so inclined, with the verdict of the jury returned as the result of a fair and impartial trial.
Finding no error authorizing a reversal of the judgment, it is affirmed. Whole court sitting.