182 Ky. 438 | Ky. Ct. App. | 1918
Opinion of the Court by
Affirming.
Branch Howard, who lived across the creek and nearly opposite the home of Mrs. Gayhart, testified that at about four o ’clock in the afternoon the defendant came along the county road in front of his house, going in the direction of where the murder was committed, and asked
Mrs. Sylvania Campbell testified that she lived about 200 yards from where John Spurlock lived; that her residence is on the same side of the road; that she owned the land between the road where Spurlock was killed and the Quicksand creek; that there is a considerable bottom of land between the place of the killing and the creek at the mouth of Bose’s branch, up which the defendant lived; that she was down in this bottom shucking corn at the time of the shooting; that immediately thereafter she saw a man run from the place of the killing down into the bottom in the direction of the creek, but that she did not recognize him apd did not remember how he was dressed. Shade Combs and George Daniels testified that they had seen the defendant some months before the murder of Spurlock with a 32 automatic pistol.
Loss Noble testified that upon the afternoon of and shortly before the killing he saw defendant have in his hands the loaded magazine of a 32:caliber automatic pistol.
Clay Watkins testified that two pistol balls taken from the body of the deceased were 32-caliber, but that he did not know whether they were from an automatic pistol or not.
Will Barnett testified that the two pistol balls taken from the body of the deceased were, in his judgment, of 32-caliber, and steel jacketed, leaden balls.
Green Watkins, a constable, and Shade Combs, a deputy sheriff, testified that they went to the home of defendant at 7:30 and again at midnight on the night of the murder, and again about noon op the next day, and did not find him there upon any of these occasions, but. that they found him there and arrested him the next day, which was the second day after the murder; that the morning after the murder they saw tracks leading from the place of the murder across the bottom to the mouth of
Sam Cockrill, another deputy sheriff, said the shoes that defendant wore on the examining* trial were of the size and character that made the tracks, and that “they corresponded, looked like pretty near as anything could, I reckon;” that a great many people in that locality wore shoes with sprigs or tacks in the soles, but that there was a peculiarity in the way the sprigs were placed in the bottom of the shoe that made the tracks.
Tom McIntosh testified that at about 11 o’clock on the night of the killing, defendant and Delbert Prater came tó his house, and that-one of them was carrying a gun.
Lum Johnson testified that at about half-past two the next morning* a man he did not know, and who said his name was Combs, and whom he identified as the defendant, came to his house and got him to get up and go to his store near by, and sell him Vienna sausage, crackers, candy and pickles.
Mrs. Sarah Spurlock, widow of the murdered man,testified that at the time of the killing she was in a field below her house and near the road, looking after some turkeys ; that the killing* occurred where the road crosses a ravine which was obstructed from her v(iew, but immediately after she heard the shots fired, a man climbed over the fence and ran down through the bottom toward the mouth of Rose’s branch; that the man wore a cap, a blue shirt, and overalls; and that in her judgment it was the defendant; that she had known the defendant for about 16 years; that she was within 100 or 150 yards of the man she saw running across the bottom toward the mouth of Rose’s branch. - Several witnesses corroborated the testimony of Mrs. Spurlock as to how the defendant was dressed upon the afternoon of the killing*. Other witnesses testified for the Commonwealth to have seen the defendant either before or after the murder, and close enough to the place to have been there at the time the shots were fired.
While this evidence is all circumstantial, it is certainly such evidence as tends to- show the guilt of the defendant and required a submission of the case to the jury. Not only so, but this evidence was amply sufficient to sus
And the verdict of a jury will not be disturbed upon the ground it is not sustained by the evidence unless it is flagrantly against the evidence. See section 281 of the code as amended. Wilson v. Commonwealth, 140 Ky. 1; Chaney v. Commonwealth, 149 Ky. 467; Hall v. Commonwealth, 152 Ky. 812; Minniard v. Commonwealth, 158 Ky. 216.
The only evidence introduced in behalf of the defendant other than that for the purpose of discrediting the evidence of Mrs. Spurlock was to prove that the defendant was not at the place of the murder when it was committed, and we can not say that upon all of the evidence the verdict was flagrantly against the evidence; in fact we do not -see how it could have been other than it was, because all of the evidence shows defendant was in the immediate vicinity of the place both shortly before and directly after the murder.
Dealing with a similar comment -this court, in the case of Tudor v. Commonwealth, supra, pertinently said: “It may be that it was intended as an allusion to the fact that appellant did not testify, but we can not see that it was sufficiently obvious to direct the jury’s attention to the fact, if it had not been for the objections of the defendant.” So in the case at bar, we do not think that the statement made by the attorney for the Commonwealth was objectionable because it was not. obviously even an indirect reference to the fact that defendant had not testified, and possibly became connected with that fact in the minds of the jurymen only because of the objection thereto by the defendant of which he can not complain.
- George Daniels testified over the objection of the defendant that about two months before John Spurlock was killed he saw the defendant have a 32 automatic pistol, in the town of Quicksand, to which the defendant excepted. This evidence is alleged to be too remote, therefore, incompetent. We do not think, however, that this was too- remote even had it stood alone, but it was certainly competent here because the Commonwealth also proved that upon the day of the murder the defendant had in his possession the loaded magazine of just such a weapon. The defendant also insists that it was error to refuse to permit him to prove by Sam Cockrill that on the trial of the ease at Jackson he saw a number of witnesses who testified in the case, wearing shoes that had tacks in the bottom of them; but even if this were error, it was not prejudicial because it was proven by this and other witnesses that a great many people in that locality wore shoes with tacks in the bottom of them, and besides there was no avowal that the witness would have so testified. The defendant proved by Bertha Clemons that on the evening of the killing, Mrs. Spurlock asked her, in talking about the killing of her husband, if she thought that James Brewer would do anything like that, and the court, upon motion of the plaintiff, excluded this evidence from the consideration of the jury. It is urged that this evidence was to show that the witness, Mrs. Spur-lock, had perjured herself when she said that, she saw a man whom she took to be Wiley Miller running away from the place of the killing; but this evidence certainly
The defendant introduced Carlie Clemons, who stated that on the afternoon Mr. Spurlock was killed, he. was at the home of Mrs. Spurlock and talked with her about the killing; and he was then asked if, during that conversation, he heard Mrs. Spurlock accuse the defendant of having done the killing; and it was avowed that the witness would have answered that he had not heard her make any such statements. It had already been proven by a number of witnesses, and Mrs. Spurlock herself had admitted that she had not accused the defendant of having committed the murder until she testified to the same at the examining trial, so that the exclusion of this evidence, if error, was not prejudicial.
Failing to find any prejudicial error in the trial of the defendant, the judgment is affirmed.