200 Ky. 435 | Ky. Ct. App. | 1923
Opinion op the Court by
Affirming.
The appellant, Charles Miller, a colored .man about, twenty-four years of-age, was indicted for and convicted in the Breckinridge circuit court of murdering Sam May-craft and was given the death penalty. On his appeal to this court, the judgment was reversed by an opinion reported in 197 Ky. 703, and in which the facts relating to the Commission of the homicide are stated and will not he repeated' here.. That opinion was rendered on. February 13, 1923, and a second trial was had in tbe Breckinridge circuit court on May 31, thereafter, resulting in a similar verdict, upon which judgment was rendered and which defendant seeks to reverse by this appeal.
Only two errors are argued and relied on for that -purpose by -his able counsel, which are (1), the court erred in overruling defendant’s motion for a continuance because of the absence of Dir. Milton (EL Board and Aubrey Mopley, material witnesses in his behalf, and whose testimony, if present, was -set out in.the affidavit which the-Commonwealth agreed might he read as the depositions-of the absent witnesses, and (2), that the verdict of the jury is flagrantly against the evidence on defendant’s chief defense of insanity"at the time the homicide was committed.
1. It was stated in the affidavits that the two witnesses resided in Louisville, Jefferson county, Kentucky,, and that a subpoena had issued for them “on the —day of May, 1923, ’ ’ and placed in the hands of the -sheriff of that county, hut he had not returned them. It is doubt
With reference to the witness Dr. Board, it was stated that “on the — day of - 1923,” and while defendant was imprisoned at the penitentiary at Eddy-ville, Kentucky, to which place he was sent after his first trial, witness examined defendant and pronounced him insane and that he had been so for more than five years, and that he did not have sufficient reason to know what he was doing or to know right from wrong because of his mental unsoundness. With reference to the witness Mopley, it was stated in the affidavit that he would swear that defendant was in Louisville on October 4,1922 (the evening on which the homicide was committed), and remained in that city until something like ten o’clock the next morning, October 5, which, if true, rendered it impossible for him to have committed the crime with which, he is charged..
The trial was had at a term subsequent to the one at which the indictment was returned, and section 189 of the Criminal Code vests in the trial court a sound discretion in such cases as to whether the prosecution should be continued because of the absence of defendant’s witness or witnesses, or whether a trial will be ordéred if the prosecuting attorney agrees to admit the affidavit to be read as the testimony of the absent witness or .witnesses. Under the latitude conferred by that section we have uniformly held that under the broad discretion therein given the trial'court, a judgment of conviction will not be reversed for refusing a continuance, unless from all the facts -and circumstances of the case it manifestly appeared that defendant’s substantial rights were prejudiced thereby (Brown v. Commonwealth, supra), an example of which might be, where the testimony of the absent witness was directed to a most vitally material issue in the case and was the only testimony thereon. But where there was other testimony heard at the trial on that issue and the absent testimony was only cumulative,
The asylum physicians said that he was classified by them as “a dementia praecox, paranoid type,” but that he “ escaped 'before a positive diagnosis was agreed upon by the staff with the man present.” They also said that the classified affliction produced with the patient “prominence of delusions, particularly ideas of persecution or grandeur, often connectedly elaborated, and halluncinations in various fields with progressive deterioration.” One of the physicians stated that assuming defendant to be in the same mental condition on October 4, 1922 (the date of the homicide), as he was. when confined in the institution, he would still have sufficient reason to know what he was doing and to know right, from wrong; but the other one answered, in response to the same hypothetical question, “If this man had delusions of persecution he would not be responsible for his actions..” The father testified that the defendant, in his opinion, was not mentally sound, but one of his colored neighbors in Alabama, who was introduced by. the Commonwealth, testified to the contrary. In addition the Commonwealth introduced Doctors Sights, Traviss, and Kinchloe, all of whom saw and conversed with defendant after he committed the crime and they testified in substance that according to their opinion he was: of sound mind and responsible for his acts.
The Commonwealth also introduced A great number of lay witnesses who saw and conversed with defendant, some on the day before he committed the crime at night, and others afterwards on up to the day of the trial, and from those conversations and the conduct of defendant as observed by them they stated that, in their opinions, he possessed a normal mind. Added to all that testi
The court, in its instructions, submitted to the jury the issue of insanity and with such accuracy as to elicit from counsel the .statement that “after careful (study, we are unable to point out any defects in the instructions, as. given by the court.” Under the instructions the jury found that issue against defendant, and with the evidence upon it, as above briefly outlined, there exists no ground under numerous decisions of this, court, other than sympathy, to interfere with the verdict. Because of the death penalty, we have given to the record close study in order to convince ourselves that the defendant had a fair and impartial trial according to the prescribed rules of criminal practice and are unable to find any error committed by the court, either substantial or otherwise.
The homicide was a most atrocious one and that the defendant committed it is so overwhelmingly proven that his counsel admitted it, and relied solely on the plea of insanity, which, according to his (statement to the jury, was not for the purpose of securing an acquittal, “But, under the instructions the court will give you, send him to the penitentiary for life,” thus reducing the issue solely to the defendant’s mental responsibility at the time he committed the deed. The jury, from evidence abundantly authorizing it, rejected his only plea, and any commiseration which we might entertain, because of his' unfortunate situation, furnishes no legal grounds for our interference.
Our conclusion, therefore, is that no ¡reasons are shown for a reversal of the judgment, and it is accordingly affirmed.
Whole court sitting.