201 Ky. 527 | Ky. Ct. App. | 1924
Opinion of the Court by
Affirming.
On the morning .of December 24, 1922, Thomas Goldsmith, accompanied by his son Sam, left their home in a wagon with the intention of driving down to what was known as the rifle range in Bullitt county to secure some lumber that had been left at their old home, which was sold to the government and included in the army reservation, their present residence being about two and a half miles therefrom. After reaching the range they met Tom Marcum, husband of appellant, and Sol Dennison, a man employed by him. The latter two had with them a quart of whiskey from which the four took several drinks, during which time Marcum stated that he had come down there to secure some wire that had been left, and the senior Goldsmith volunteered to take it home for him.
The testimony of Sam Goldsmith is substantially the same as that of Mrs. Goldsmith. John Goldsmith, a nephew of the deceased, lived between the homes of the Marcums and the Goldsmith and about a quarter of a mile from the former. lie testified that upon the day of the killing, while chopping wood, he heard loud voices coming from the Marcum premises, and recognized the voice of .Tim Marcum saying, “lam going to get into the machine and go over there and put a stop to him damn quick if it takes everything I have got;” and that.he further heard other voices but was unable to determine whether they were those of men or women. This was about 4:30 p. m., . and in ten minutes he heard Marcum leave in his car and
Several other witnesses testified, but their evidence was not of an important nature.
A short time after this killing James Marcum was indicted and upon trial was convicted and sent to the penitentiary for five years; and at the April term of the Bullitt circuit court Sol Dennison and Jennie Marcum were indicted, charged with unlawfully, wilfully and feloniously entering into a conspiracy with each other and with James R. Marcum, the purpose of which conspiracy was to kill and murder Tom Goldsmith.
At the next term of the court the defendants were tried and found guilty by the jury, which fixed their punishment at two years in the penitentiary; and from that judgment this appeal is taken.
In their motion and grounds for a new trial, which was overruled, attorneys for appellant filed nine grounds upon Avhich they relied for reversal. However, after carefully reviewing them we find but four with which we think it necessary to deal.
1. The court erred in calling a special venire of jurors from Nelson county before any effort had been made to obtain a jury in the county of Bullitt.
2. Incompetent evidence was admitted that was highly prejudicial to the appellant.
3. The court erred in-overruling the motion of appellant to direct the jury to find her not guilty.
4. The court erred in limiting the argument of counsel for appellant to one hour.
In the first ground counsel for appellant contend that the court seriously erred in calling a special venire of jurors from Nelson county before having made a legal effort to satisfy himself that a jury could not be secured in Bullitt county. However, it would appear that the trial of Jim Marcum, husband of appellant, had been held a short time before the one in question, and the court was of the opinion that the jury summoned from Nelson county would be necessary. Counsel for appellant objected to this special venire, and supported their contention by citing section 194 of the Criminal Code, as follows :
“If the judge of the court be satisfied, after haAdng made a fair effort, in good faith, for that purpose, that, from any cause, it will be impracticable to obtain a jury*532 free of bias in tbe county wherein the prosecution is pending, he shall be authorized to order the sheriff to summon a sufficient number of qualified jurors from some adjoining county in which the judge shall believe there is the greatest probability of obtaining impartial jurors, and from those so summoned the jury may be formed.”
It will be observed, however, that this provision of the Code fails to specify clearly or outline positively in just what manner or by what procedure the court shall make this “effort” to secure jurors in the county wherein the prosecution is pending, and much depends upon the words “after having made a fair effort in good faith for that purpose.” It is very possible that the legislature contemplated that any investigation or inquiry made by the court wherein he was of the belief that a proper jury could not be secured in the county wherein the offense had been committed, would be deemed a fair effort, and that his conclusion relative to this inability would be sufficient to warrant his directing the sheriff to summon a jury from some adjoining county. In any event, this point seems definitely settled by section 281 of the Criminal Code, in which we'find the following:
“281. (1) Decisions not subject to exception. Decisions of the court upon challenges to the panel or for cause, or as to manner in which jury is selected, or as to qualifications of jurors are not subject to exception and the action of the trial court in respect to these matters, however erroneous or prejudicial to the accused, can not be reviewed on appeal.” And in support of this see Curtis v. Commonwealth, 110 Ky. 845, 23 R. 267, 62 S. W. 886; Powers v. Commonwealth, 114 Ky. 237, 24 R. 1007, 70 S. W. 644; Vinegar v. Commonwealth, 104 Ky. 106, 20 R. 412, 46 S. W. 510; Logan & Tribble v. Commonwealth, 174 Ky. 80; Sergent v. Commonwealth, 133 Ky. 284; Thomas v. Commonwealth, 200 Ky. 591.
In the second ground attorneys for appellant contend that the court erred in permitting the witness, .John Goldsmith, to testify that about 4:30 p. m., just before the killing, he heard James Marcum say, “Come on and get into the machine; I am going to put an end to him damn quick, if it takes everything I have got,” as it was not shown that it was said in the presence of appellant, as the witness did not know where Mrs. Marcum was at the time the statement was made; and counsel for appellant moved the court to exclude this testimony. It may be conceded
True it is incompetent to admit the declarations of one conspirator in the absence of another conspirator when the conspiracy has not been clearly established; however, in this case the defendants made such testimony entirely competent by disclosing that appellant was present; and such being the case, she was not entitled to a peremptory instruction at the close of the testimony on behalf of the Commonwealth. We find in the case of C., N. O. & T. P. Ry. Co., &c. v. Cook’s Admr., 24 R. 2152, the following:
“The rule is that where a defendant moves for a peremptory instruction at the conclusion of the plaintiff’s, evidence, and his motion being overruled, introduces his; testimony, if that testimony supplies any fact or facts; not shown by the evidence for the plaintiff, and thus; makes out a case, this court will not reverse because these facts were not shown by the plaintiff before the motion for a peremptory instruction was made. ’ ’
It is clearly shown by the testimony of appellant beginning on page 110 of the transcript of evidence that she was at home when her husband returned on the afternoon of the killing, and was talking to. him at frequent intervals up and until she entered the machine when they drove towards the home of the Goldsmiths. This is further demonstrated by the testimony of Sol Dennison, one of the defendants, on page 81 of the transcript; also by the testimony of Luvenia Marcum, daughter of appellant, on page 126 of the transcript.
The third ground, that the court erred in overruling the motion of appellant to direct the jury to find her not guilty, is scarcely tenable, as we feel that the evidence discloses ample ground to carry the case to the jury; and in Pace v. Commonwealth, 170 Ky. 560, the court said:
“It is only in the absence of any evidence tending to establish the guilt of the accused that the trial court will be authorized to grant a peremptory instruction directing his acquittal. ’ ’
And in Commonwealth v. Boaz, 140 Ky. 715, we find an appeal from the circuit court wherein one Boaz was
‘ ‘ The trial court has the same right and authority to give a peremptory instruction in a criminal proceeding that he has in a civil action. And if the evidence introduced in behalf of the Commonwealth fails to incriminate the defendant, or is wholly insufficient to show that he is guilty of the offense charged, it is not only the right but the duty, of the trial judge to instruct the jury to return a verdict of not guilty. It is not, however, within the province of the trial court to take from the jury a Criminal prosecution if there is any evidence, however slight it may be, conducing to show that the defendant is guilty of the offense charged, or any of its degrees mentioned in the Code.”
And, further:
“It is now well settled in criminal cases that if there is any evidence tending to connect the accused with the commission of the crime, it is the duty of the trial court to submit the case to the jury. Applying this rule to the case at bar, we are of opinion that the peremptory instruction should not have been given. ’ ’
A review of the testimony offered by appellant and witnesses in her behalf clearly demonstrated that upon the arrival of her husband at his home on the afternoon of December 24, two hours prior to the killing, she was there. She testified to several conversations with him, which is further proven by that of Dennison and her daughter, Luvenia. .It is further shown that after the conversation Tom Marcum held with Sol Dennison, his hired man, relative to the mistreatment of his daughter, Luvenia, by Tom Goldsmith, appellant, accompanied by her husband and the others, entered the car on its fatal journey. True testimony is offered that the Marcums intended going to the home of a neighbor, Holsclaw, for the purpose of telephoning to the sheriff to come and arrest Tom Goldsmith; and further that upon arriving just opposite the Goldsmiths on a county road, Luvenia Marcum testified that Tom Goldsmith hailed her daddy, whereupon the car was stopped, and that Marcum and his wife left it and started in the direction of Goldsmith, the father carrying the shot gun on his arm; and though
“We are aware of the rule that a conspiracy may be proved by circumstantial evidence alone and that, neces- ■ sarily, the testimony in the trial of a conspiracy charge must take a wide range, since, as said in the case of Gambrell v. Commonwealth, 130 Ky. 519, ‘A conspiracy is almost necessarily established by the welding into one phain of a number of links, each in itself inconclusive and*536 insufficient to prove the conspiracy, but, when connected and examined as a whole, sufficient to show it. ’ ’
That statement of the rule of practice was referred to with approval in the ease of Welch v. Commonwealth, 189 Ky. 579, and it but expresses the universal rule upon the subject and as a result of the latitudinous application of the rule, it frequently occurs that acts, statements and conduct of an alleged co-conspirator are permitted to be proven before there is any established connection between him and the defendant on trial, which testimony, however, should always be excluded if the Commonwealth fails to connect the defendant therewith; but in the case at bar it is, we think, amply demonstrated by the testimony that appellant entered fully into a conspiracy with Jim Mar-cum and Dennison to kill Tom Goldsmith.
In the fourth ground attorneys for appellant complain that the trial court erred in limiting the argument to one hour for each side, but the record discloses that they suggested that the case- be submitted to the jury without argument and that counsel for the Commonwealth objected, whereupon the. court limited the argument to one hour, to which counsel for appellant objected. (See transcript of evidence, page 184.)
This court would not feel inclined to reverse a judgment for an alleged error of this character unless it was affirmatively shown from the record that the substantial rights of the defendant were prejudiced; and it would appear that counsel could have easily presented to the jury within the space of time given an argument that they at first did not deem of sufficient importance to present at all. In behalf of their contention they refer to the case of Williams v. Commonwealth, 82 Ky. 640, wherein at the trial of a defendant charged with a felony his counsel, desiring to argue the case, was limited to five minutes; and in an opinion by the court it is held that the allowance of time for argument was within the sound discretion of the court, and unless complaint was made and longer time asked for, the court would not interfere; but it further says: “To confine his counsel to five minutes amounts to giving him no time whatever;” and “in a criminal case greater latitude should be given. ’ ’ The court also said: “However well satisfied -the trial judge may be of the guilt of the accused, and however hopeless the task of argument by counsel may seem to him, yet he has no power to deprive the defendant of this right, either by*
In Lynch v. The State, 9 Ind. 541, it is said:
“The court has a right to regulate by reasonable rules and limitations the argument of causes. This is a necessary discretion to be possessed by a court to prevent abuse. ’ ’
It is true that every right of a defendant should be zealously guarded, and that proper latitude should be afforded counsel to present argument in his behalf; but at the same time it is equally imperative that useless and needless consumption of time in presenting a case be prevented ; and we feel that it is entirely within the province of the trial court to limit argument to such a length as he may deem wise and proper, though at all times exhibiting a due regard for the rights of the defendant and the Commonwealth ; and we further feel that attorneys for appellant in this case have no just ground upon which to base their contention that the court erred.
The judgment is affirmed.