177 Ky. 224 | Ky. Ct. App. | 1917
— Affirming.
This is an appeal by Eugene F. McDonald, who .was convicted of murder and given a life sentence in the state reformatory.
According to the evidence for thé Commonwealth, McDonald lived at Lexington, and was a general agent for several life insurance companies. One of these companies was the Aetna. The deceased, W. R. Dabbs, was a sub-agent working under the supervision of McDonald, but had no official connection with the Aetna Life Insurance Company. At the time of the homicide, McDonald had in his possession a policy in the Aetna Life Insurance Company, insuring the life of Dabbs in the sum of $7,500.00. Dabbs’ wife was named as beneficiary in the policy, but at the time of his death, she did not know of the existence of the policy. A short time after McDonald’s arrest the policy was mailed to Mrs. Dabbs. On the morning of June 16, 1916, McDonald sent Dabbs from Lexington to Frankfort on business and gave him some money to pay his expenses. Dabbs wore a dark, thin, striped palm beach suit and a black derby hat. McDonald left his office about half past ten or eleven o’clock the same morning and was not seen by his stenographer any more that day. He was met at the interurban station in Frankfort by B. Moore, on the arrival of the three o ’clock car from Lexington. He inquired of Moore if anyone had been looking for him. He was seen the same afternoon on the streets of Frankfort by J. J. Downing, manager of the Western Hnion.Telegraph Company, and Douglas Marshall, a messenger boy for the Postal Telegraph Company, both of whom knew and recognized him, and say that he saluted Mr. Downing from across the street. Between the hours of three and five o’clock, he spent an hour or hour and a half in the office of the Frankfort Elevator Coal Company, where he discussed insurance matters with Adolph Wells and Orville Harrod. While there, Harrod gave him the address of a man by the name of Fouschee, who was at the head of the American Life Insurance Company. Harrod spelled the name “Fouschee,” and McDonald made the following memorandum on the inside of a back of a book: “Forschee-American Life.” This book was found among McDonald’s effects and introduced in evidence and the memorandum was identified by Harrod
McDonald did not testify himself, but introduced several witnesses to show that he was not in Frankfort on the day of the homicide, but was in the city of Lexington. J. O. Reynolds, attorney at law, says that he was with McDonald between the hoiirs of twelve and two o’clock at the Phoenix Hotel and remained with him until a few minutes after two. Miss Louise Turner was also present on the same occasion and testifies to the same effect. Dr. Ed Gordon, a well-known dentist of Lexington, says that he saw McDonald on Main street about 2:30 p. m., June 16th. John Skulley, who Worked at McGurk’s confectionery store in Lexington, is positive that he saw McDonald in Lexington shortly before seven o ’clock that night. Robert L. Scott, who was present at the same time, corroborates Mr. Skulley. Alex. Hughes, who was soliciting members for the Board of Commerce of Lexington, saw McDonald in Lexington about fifteen minutes to twelve o ’clock and took his application for membership. There was also evidence to the effect, that about the time the homicide was supposed to have taken place, a man resembling Dabbs was seen in the vicinity of the murder and nearby were several tramps. It was further shown, that in order to reach Frankfort at 3 p. m. it was necessary to take the interurban car leaving Lexington at 1:40 p. m.
"We shall consider the grounds urged for a reversal in the following order:
1. The indictment is attacked because it did not allege that the defendant “did kill and murder the deceased.” In the accusatory part of the indictment, the defendant is charged with the crime of murder “com
2. The defendant asked for a change of venue on the ground that the people of Pranklin county were, for various reasons, so prejudiced against him that he could not obtain a fair and impartial trial in that county. His petition was supported by the affidavits of two residents of' Payette county. Several counter-affidavits were filed by the Commonwealth, denying the facts upon which the application for a change of venue was based. It is a settled rule in this state, that the question of a change of venue is one that addresses^ itself to the sound discretion of the trial court, and that a judgment of conviction will not be reversed for a failure to, grant a change of venue, unless it is made clearly to appear that such discretion was abused. Hargis v. Com., 135 Ky. 578. In view of the fact that the affidavits on which- the application for change of venue was based, were made by nonresidents of the county where the homicide occurred, we cannot say that the trial court abused its discretion in giving greater weight to the counter-affidavits which were made by persons who were actual residents of that county, and who were therefore in a better position to know the state of public sentiment with reference to the defendant.
3. Another ground urged for a reversal is the failure of the trial court to grant the defendant a continuance. When the case was first called, the defendant announced not ready, for the sole reason that the witness Davis Wademore was absent. Defendant’s motion to continue was overruled with the distinct understanding that the testimony of the witness, Wademore, which was
4. Complaint is made of the fact that the trial court refused to permit the jury to view the premises where the homicide is alleged to have occurred. We have frequently held, that a view of the premises by the jury is a matter which addresses itself to the sound discretion of the trial court. While a view of the premises in ques
5. In instructing the jury in homicide eases, it is the settled practice in this state for the trial court to define malice, and as the definition given in this case is one which has often been approved by this court, it follows that there was no error in this particular.
Nor was the defendant entitled to a peremptory because the Commonwealth failed to prove malice. It is not necessary, of course, to show that the defendant expressed any ill will towards the deceased. On the contrary, malice may be inferred from the circumstances surrounding the homicide, and where these circumstances tend to show an unprovoked murder, it cannot be said that there was not sufficient evidence of malice to make a question for the jury.
Lastly, it is insisted that Judge Williams, who was employed to assist in the prosecution, was guilty of misconduct in his argument to the jury. As before stated, appellant did not testify in his own behalf. According to the affidavit of one of the attorneys for appellant, Judge Williams used the following language:
“There were only two men present at the time of this murder, one of them was Dabbs, who was murdered, who is now dead and cannot testify in this case, and the other one sits in this court room during the whole trial of this case, and who knows all about the facts in this case, and he” (Judge Williams motioned towards the defendant, McDonald) “fails and refuses to go on the witness stand to explain how: ’ ’
According to Judge Williams’ affidavit he used the following language :
“There were no eyewitnesses to this killing; but two men know or knew who did it, Mr. Dabbs and the man who did the killing. Dabbs is dead and no one has told us how it occurred.”
The trial court did not undertake to decide what was the exact language used by Judge Williams. His certifi
“Upon the filing of the affidavit of L. F. Johnson and the filing of the statement of Y. A. Bradley and the affidavit of B. Gr. Williams, the court states that B. Gr. Williams in the course of his argument to the jury in behalf of the Commonwealth made statements (the exact language of which the court cannot now recall) tending to be construed as reflecting or commenting on the failure of defendant to testify without directly criticizing the defendant because of his failure to testify, and that upon defendant’s objecting to said Williams’ statement the court admonished counsel that no comment upon or reference to defendant’s failure to testify could or should be made. ’ ’
In view of these facts, we cannot undertake to decide which of the affidavits is correct, but must view the question in the light of the certificate of the trial court, that is, that Judge Williams “made statements tending to be construed as reflecting or commenting on the failure of defendant to testify, without directly criticising the defendant because of his failure to testify,” and that thereupon the court admonished counsel that no comment upon or reference to defendant’s failure to testify could or should be made. When so viewed, we conclude that the alleged misconduct of counsel was not prejudicial error under the peculiar facts of this case. Without questioning the good faith of those witnesses who testified to the defendant’s presence in the city of Lexington on the afternoon and evening of the homicide, it cannot be doubted that the overwhelming evidence to the contrary was sufficient to justify the jury in concluding that those witnesses were mistaken. • The memorandum which defendant made in his notebook speaks louder than words of his presence in Frankfort, and it was not shown that he was there on any other day and made the memorandum in question. .The numerous witnesses who saw him and talked to him were positive as to the date and the time of the day. Mrs. Shabinsky and Mr. Cleveland were able to identify the occasion as that on which a relative of theirs had been buried. The defendant was not only seen alone, but was seen in company with a man answering the description of the deceased, near the place of the homicide and near the time when the homicide occurred. That he was subsequently seen coming from the direction of the place of the homicide, and that he took the 9:30
Notwithstanding the able, argument made in behalf of defendant, we perceive no error in the record prejudicial to his substantial rights.
Judgment affirmed.