33 S.W.2d 590 | Ky. Ct. App. | 1930
Affirming.
William Miller was convicted of the crime of murder, and condemned to suffer the penalty of death by electrocution. He has prosecuted an appeal, assigning for reversal of the judgment several separate grounds, which will be discussed and disposed of in the course of the opinion.
Miller, a colored man, came upon the premises of Mrs. Gertrude Neiderloh, a white woman, and shot her to death. He then shot and killed Henry Brummer, a colored man, who was engaged in some repair work on the premises of the woman. The conviction under review was for the murder of the man. Whilst Miller testified that Brummer was about to assault him with a rake, his real defense was insanity. There was testimony tending to show that Miller had been subject to epilepsy for thirty years or more, and that it had impaired his mind to such an extent as to render him irresponsible. There was other evidence to the effect that Miller was sufficiently sane to be responsible for his crimes, and some statements made by Miller indicated that his murderous conduct was prompted by motives of jealousy. It is sufficient to say that the case was submitted to the jury by appropriate instructions, and the evidence was ample to sustain the verdict.
The first ground of reversal urged is alleged misconduct on the part of the commonwealth's attorney. Two matters are mentioned, the first relating to some questions asked a witness, and the second to an argument addressed to the jury. When Miller was upon the witness *450
stand in his own behalf, he was asked if he did not make certain statements in the presence of some named policemen. He denied making the statements. One of the policemen was later offered as a witness in rebuttal, and was asked if Miller had made the statements. The objection of the defendant was sustained upon grounds that appear to have been erroneous. Statements of a defendant are admissible in evidence as substantative proof, but properly should be introduced in chief. Bennett v. Commonwealth,
In his argument to the jury the commonwealth's attorney stated that in this state convicts do not serve over ten years until they are out on the community again. It is conceded that the argument was designed to induce the infliction of the death penalty as against a lesser punishment, and it is insisted that it was erroneous and prejudicial. In Bolin v. Commonwealth,
It is stated in the brief that the verdict is contrary to the law and the evidence, and that the court erred in the instructions to the jury, but the statement is wholly without basis. No particular instruction to the jury is complained of, and there is no apparent basis for any complaint thereof. The verdict of the jury is supported by an abundance of evidence, and the appellant admits the commission of the crime, in the very manner detailed by the witnesses. But, upon this branch of his argument, appellant's counsel insists that certain doctors, who testified concerning the characteristics and results of epilepsy, were entirely wrong, and gave testimony at variance with the medical authorities upon the subject. We are invited to search the books upon this question of fact, and, by a rejection of the medical testimony for the commonwealth, to find that the proof for appellant tending to show his insanity was uncontradicted. The question of defendant's sanity was an issue of fact to be determined by the jury from the evidence. It was competent for the defendant to prove by his experts that he was of unsound mind when the crime was committed. It was equally competent for the commonwealth to prove the reverse, if it could do so. Books of science are not admissible in evidence except to contradict or to impair the credibility of an expert who bases his opinion upon *452
the particular authority. 1 Greenleaf on Evidence, sec. 440. Cf. Harper, Brooks Co. v. Weikel, 89 S.W. 1125, 28 Ky. Law Rep. 650; Commonwealth v. Sturtivant,
This court does not determine the facts in a criminal case, but is confined to a consideration of alleged errors. It is not authorized to pass upon the credibility of the experts introduced at the trial, or empowered to usurp the functions of the jury in that behalf. Scientific facts, which are known to all men of ordinary understanding and intelligence, may be judicially noticed, but not such facts as may be known only, if at all, by a specially informed class of persons. 23 C. J. 145, sec. 1967. Cf. Cronin v. Cronin,
The appellant acted with apparent deliberation. He procured a pistol, searched out his victims some distance away, shot them down, without warning, and then proceeded to run away and conceal himself. His testimony at the trial evinced a clear understanding of the nature and quality of his act. The verdict of the jury to the effect that he was of sound mind and legally responsible for his crime is amply supported by the evidence. Indeed, the verdict hardly could have been otherwise in the light of all the facts.
The judgment is affirmed.
Whole court sitting.