170 Ky. 301 | Ky. Ct. App. | 1916
OpiNion op the Court by
^Reversing.
The appellant, Claude MeCandless, shot and instantly killed Barney Trimble, in Livingston county. For this action be was indicted for tbe crime of wilful murder and upon a trial was found guilty of voluntary manslaughter by tbe jury and so adjudged by tbe court. His motion to grant him a new trial being denied, bo has appealed to this court and seeks a reversal of tbe judgment for many alleged errors, all of which we do not deem it necessary to consider. A statement of tbe main facts relating to tbe homicide, and tbe contentions of tbe parties in regard thereto will be necessary for tbe purposé of determining tbe propriety of the decisions of tbe court which are complained of.
Tbe appellant was a tenant of tbe deceased for tbe year 1912, upon a farm which was under tbe control of tbe deceased. In tbe month of August tbe appellant received information to tbe effect that deceased hacl sought to have sexual intercourse with appellant’s wife,, and in bis attempt to effect this purpose bad assaulted! her. Appellant sought out tbe deceased and their meeting resulted in a fight- between them, which ended as appellant claims in deceased drawing a pistol upon and
Shortly thereafter appellant and his wife were visiting at the home of Perry Davidson, whose dwelling is immediately beside the road which leads from the home of deceased to a farm which was under the control of deceased and occupied by his tenant, John Bradshaw. Deceased came from his home to the latter place by the dwelling of Davidson and hitched his horse in a lane in full view of Davidson’s home, and had an interview with Bradshaw, who told him that appellant was at Davidson’s home. Deceased left Bradshaw, mounted his horse and rode in the direction of his home. Just as he was opposite the house of Davidson, which was twenty or thirty feet from the road, appellant came out of the house and upon the porch in front with his shot gun, and immediately raised his gun and discharged it at deceased. The load took effect in his right shoulder and arm and his body contiguous thereto and caused his instant death. One bullet entered his forehead, near the center, one near the center of his upper lip, and one in the arm-pit of his right arm. There was only one eye
The theory of the prosecution is that appellant recognized the horse of decedent, and lay in wait for him in the house until he approached, and' then stepped out upon the porch and shot and killed him, and that decedent was either not aware of his presence or at least was not making any threatening demonstrations nor attempting to do anything to appellant at the time he was shot.
The appellant claims that decedent had assaulted him with a pistol upon three prior occasions; had threatened to do him violence, and that some of the threat's had been communicated to him prior to the shooting j that on the occasion when he killed decedent, he was in the act of leaving Davidson’s home to carry -a message from one Iiibbs, which he had promised to deliver to a neighbor, and had his gun with him for the purpose of hunting, and when he stepped out upon the porch, the decedent was directly in front of him in the road and at once attempted to draw his pistol, with a threatening and menacing manner and said to him: “You have that old gun again, you son of a b — h,” and that fearing for his life and for the purpose of saving himself from threatened death or great bodily harm, he immediately shot and killed Trimble.
The grounds relied upon for a reversal of the judgment are:
(1) The court erred to the prejudice of the appellant’s substantial rights in overruling his motion to have a special officer appointed to summon the veniremen from whom to select a jury, instead of the sheriff or his deputies.
(2) The court erred in admitting incompetent evidence, over his objection, to be heard and considered by the jury.
(3) The court erred in excluding from the consideration of the jury competent evidence offered by him.
(4) The court erred in permitting the jury, after the ease had been submitted to them and while it was
(5) The court erred in the instructions it gave to the jury, and failed to properly instruct the jury.
The grounds will he considered in their order.
(.a) After the members of the regular panel of jurors, which had been summoned and were in attendance for the term, had been exhausted in the effort to secure a jury, the appellant moved the court to draw the names of jurors necessary to constitute the panel from the jury wheel, but his motion was overruled. He then moved the court to appoint a special officer to summon persons qualified for jury service from the body of the county necessary to complete the jury, instead of the sheriff and his deputies, and in support of this motion made and filed his affidavit. No complaint is made of the ruling of the court upon the first motion, but the decision of the court upon the latter motion is complained of as prejudicial error. The affidavit stated that the sheriff was a warm personal friend of the deceased; that it was appellants information and belief that the sheriff was a partisan of the prosecution, and that he had information that the sheriff had expressed himself to the effect that the appellant should be convicted and was guilty as charged; that he did not believe that the sheriff would select fair and impartial jurors, and that he did not believe that either of the deputy sheriffs Avould act impartially in summoning persons for jury service.
The court properly overruled the motion to appoint a, special officer for the purpose of summoning citizens to compose the jury. The affidavit was unsupported by any other proof, and the appellant does not state any fact or circumstance which would show his suspicions in regard to the sheriff were in any wise correct or founded in anything real. Section 193, of the Criminal Code, provides that the court may for sufficient cause, designate some other officer or person to summon petit .jurors than the sheriff. In Forman v. Commonwealth, 86 Ky. 605, the defendant objected to the assistant of the person designated in place of the sheriff to summon the jurors, because of supposed bias of such assistant against him, and prepared and filed his affidavit to that
“And certainly the unsupported affidavit of the defendant should not-be regarded by this court sufficient evidence in that respect upon the part of the lower court; for if by the mere objection of the defendant the appointment or designation of a person deemed by the court fit may be set aside, the summoning of the jury would be indefinitely postponed.”
It seems that the .same rule would govern the attempt to. set aside the sheriff and substitute another in his place for the purpose of summoning jurors. The evidence necessary to support the motion to set aside the sheriff and to designate another in his stead to summon persons for jury service ought to be competent evidence of acts, declarations, bias, or such circumstances as would show that the sheriff would not perform his duty impartially.
(b) On the trial, the prosecution offered in evidence the hat and clothing which deceased was wearing at the time he was hilled. The appellant objected to its introduction and his objection being overruled, he now insists that the ruling of the court was error. We cannot concur in his view. It is always proper to introduce as evidence and exhibit to the jury clothing found on a deceased person, at the time of his death, to shed any light which it may upon the manner and cause of his death. Before clothing, however, should be admitted in evidence, it should be proven that it was the clothing worn by deceased at the time. of his death or when he received his mortal wound, and that the condition of it is the same as when he was found dead or when the mortal wound or wounds were received. Levy v. State, 28 Texas App. 203; Hart v. State, 15 Texas App. 202; Davidson v. State, 135 Ind. 254. The evidence proved the hat and clothing as being that which was found upon the body of deceased just after he was killed, and that the condition of it was unchanged.
(c) A photograph, which showed the wounds upon the body of deceased, except the one in his right arm pit and the ones in his forehead and lip, was offered and received in evidence over the objection of the accused. This he complains of as error. The photograph is not with the record and hence it cannot be inspected. A photograph proven to be a true representation of the'
(c) The appellant, also, complains that the court permitted the jury to take the photograph with it to its room when it was considering the verdict. Section 248, Criminal Code, provides:
“Upon retiring for deliberation, the jury may take with them all the papers and other things which have been received in evidence in the cause.”
In Taylor v. Commonwealth, 92 S. W. 292, it was held that it was proper to permit the jury to take to its room when considering its verdict any papers which had been received in evidence in the cause. It seems that it is a matter within the discretion of the court to permit such things as have been received in evidence to be taken by the jury to its room when it retires for consultation, and we fail to see how the permission for the taking of the photograph by the jury to its room was an abuse of discretion.
(d) Mrs. Perry Davidson, directly in front and within a few feet of whose dwelling the homicide was committed, was introduced as a witness by the Commonwealth’s Attorney, and by her it was proven that immediately after the shot was fired, which caused the death of deceased, that as the accused came back into her house, he said that he had shot Barney Trimble. After the evidence in chief for the prosecution had closed, the appellant, before offering any evidence for the defense, recalled Mrs. Davidson and asked her to
(e) The appellant insists that the court ought to have permitted him to have given in evidence what his wife had informed him as to the deceased having insulted and assaulted her, and to have, also, stated that that was the cause of all the trouble between him and the deceased. In this we cannot concur. The appellant rests his defense to the indictment upon the claim that he shot the deceased in his apparently necessary self defense. Evidence as to an assault upon the wife of appellant by deceased or an improper proposal by him to her could only be competent in two states of case. If the contention was made that a knowledge of a wrong-done to his wife by deceased had dethroned appellant’s reason and that he was insane at the time of the shooting, it would be competent to make proof of the assault, and for appellant to state the facts, of which his wife had informed him. If appellant had slain the deceased after having received the information that his wife had been assaulted by deceased, and before his passions, aroused by the information, had sufficient time in which to cool and before he had opportunity to deliberate upon a trial for such crime, it would have been competent for him to have stated the information that he had received from his wife as evidence conducing to show that in slaying deceased he had been impelled by provocation reasonably sufficient to arouse his passion beyond.the power of control, and competent as bearing upon whether his crime was wilful murder or voluntary manslaughter. Shipp v. Commonwealth, 124 Ky. 643; Shepherd v. Commonwealth, 119 Ky. 931. Appellant, however, does not claim that he slew deceased upon an insane impulse, or that he shot him on account of the alleged wrong to his wife, hut that he shot him because he was threatening him with death. It is a well-known rule of the common law that the provocation must be recent, and the act committed while laboring under the passion and excitement produced by the provocation, before the provocation will reduce a homicide from murder to voluntary manslaughter. If the passion had cooled before the homicide, or if there had been suffi
(f) It is avowed that appellant would state that previous to the homicide that Jesse McCandless informed Him that the deceased had threatened to kill him. He should have been permitted to so state.
(g) The appellant offered to explain why he got off the boat and undertook to go to his mother’s house by the road, which led by the house of deceased, on the occasion when deceased followed him with a drawn pistol, by stating that the owner of the boat said that he could not or would not carry him further. The court refused to permit him to do so. He should have been permitted to do so in explanation of why he got off the boat upon the premises of the deceased.
(h) The testimony, which was given by appellant and others to the effect that when he got off the boat the deceased said to him, “I do not want you to do any shooting on my land,” “Do you understand that?” should not have been excluded. While the deceased had’
(i) The appellant should not have been denied the right to state from whom he was bearing a message to Jas. Castilla, at the time he stepped out of Davidson’s, house as he claims, and encountered the deceased.
(3) It is avowed that G-us Capron, a witness for appellant, would state that on the occasion when deceased was following appellant with a pistol, that deceased said to appellant, “I will'kill you, you Gr — d d — n son of a b — h, if you make a move.” This evidence should not have been .excluded..
(k) William Boaz, the man who was the owner of the boat upon which appellant was riding when he undertook to go by the home of deceased to his mother’s home, stated as the reason for appellant getting off the boat, that he told appellant that he was not going any farther with the boat, and appellant inquired of the witness how to go through the country to his mother’s. The court excluded this from the consideration of the jury, which was error, as it was an explanation of why appellant got off the boat near the house of deceased. The court refused to allow this witness to state whether the deceased had a pistol in his hand upon this occasion when talking to appellant. This was likewise an error.
(l) The witness, James Castilla, stated that the deceased, talking to him in reference to appellant, said, “if this thing ain’t stopped it is going to'cause one of us to die” meaning deceased and appellant. It was avowed that the witness would state that he communicated this threat to appellant a few days before the tragedy. The court erroneously excluded the offered testimony.
(m) Vernon Foster was a witness for appellant, and after being asked a question in eight different forms, in regard to statements made to him by deceased in reference to appellant, to all of which objections were sustained by the court, was finally permitted to answer, that deceased said to him, “I have been a friend to you and you are a friend to Claud MeCandless, * * * and to save MeCandless’ life or his, I had better swear these
(n) Will Hughes was called as a witness for appellant, and after stating that he was at Bishop’s sale, which occurred a short time after appellant and deceased had their first trouble, and was in a woods near the crowd, in which appellant was, asked, if deceased sent any word to appellant by him. lie answered that he did. He was then asked to state what the message was. The court erroneously sustained an objection to his making an answer. It was avowed, that if permitted to answer that he would state that deceased sent a message by him to appellant to come down into the woods, that he wanted to have it out with him. Deceased was angry and gesticulating. This evidence was competent and should have been admitted. ■
(nn)- If all the circumstances show to whom the threats refer, they are not irrelevant and inadmissible, .although they are indirectly made and by innuendo. Sparks v. Commonwealth, 89 Ky. 644; Young v. Commonwealth, 19 R. 927. In the trial of one charged with a felonious homicide, and the issue is whether the deceased or accused began the rencounter, threats made by .the deceased are admissible as evidence, as tending to show which one of them began the fight, although the threats were never communicated to the deceased. Miller v. Commonwealth, 89 Ky. 653; Hart v. Commonwealth, 85 Ky. 77; Young v. Commonwealth, supra.
Witnesses called to prove threats ought to be asked to state the words made use of by the party making the threat, and should.be permitted to state all the party ,said in the conversation connected with the.threat, so that the exact meaning and intent may be made clear.
(o) The appellant’s contention, that he should have been permitted to'prove by various witnesses his good moral character, is not meritorious. The witnesses were .permitted to testify as to his character for peace and ■quietude. This, was the only element of his character which was in question or the proof of which would shed any .light upon the issues of the case. The 'court properly sustained objections to proof of his moral character., "
(q) The instructions given the jury are • criticised by counsel for appellant, but the,case would not be reversed upon that account,' as taken as a whole they substantially state the law of the case. Upon another trial, however, there should be inserted in the. instrue-
The court should, also, upon another trial give the instruction provided for by section 239 of the Criminal Code, which directs the jury to find "the accused -guilty of the lesser offense, if entertaining a reasonable doubt of which offense he is proven to be guilty.
For errors, enumerated, in excluding from the consideration of the jury, competent and material evidence offered by appellant, the judgment is reversed and cause remanded for proceedings, consistent with this opinion.