172 Ky. 92 | Ky. Ct. App. | 1916
Opinion op the
Affirming.
The appellant, Clabe Mullins, and Lum Bellamy were neighbors and resided on the Bear Branch, of Buckhorn, in Breathitt county. On the 4th day of March, 1916, they became involved in an altercation, with each other, which resulted in the appellant shooting and killing Bellamy. The appellant immediately proceeded to Jackson and there delivered himself up to the jailer of the county to await trial for the crime. On the 4th day of April, following, the grand jury returned an indictment against him, charging him with the crime of wilful" murder, and on the same day he was brought into court and the case was set for trial for the 14th day of April. On. the 14th day of April, when the prosecution was called for trial and the Commonwealth’s Attorney announced ready for trial, the appellant filed an affidavit and moved the court' for a continuance of the case to the nest term of the court
(1) The court erred in overruling the motion for a continuance of the case to the next term or postponement of the trial of the case until A. S. Johnson, an attorney for the appellant, could be present.
(2) The court erred to the prejudice of appellant in admitting, over his objection, incompetent evidence to be heard by the jury, and in refusing to admit competent testimony to be heard in his behalf.
(3) .The court misinstructed the jury, and refused to instruct the jury upon the entire law applying to the case.
(a) When the action was called for trial, the appellant sought a continuance for no other reason than the absence of one of his attorneys. The record shows that he had two other attorneys, who were present and who engaged in and assisted him in the defense of the accusation against him, upon the trial. The affidavit made by himself and upon which he based his request for a continuance or postponement of the case, in substance, •stated, that he was relying upon the efforts and ability ■of the absent attorney to defend him; that he was the first attorney employed by him to defend the action; that he had paid to him some portion of a. fee; that he had consulted with him in regard to the case and had related the testimony to him, and that the absent attorney was the only one of his attorneys who was familiar with what he expected to prove by the witnesses in his behalf; that the attorney was acquainted in the county, and he was relying upon him to select the jurors for the trial; that he was informed that the attorney was unavoidably detained at Lexington, Kentucky, but if the case was continued or postponed to some future time,
‘ ‘ To authorize a continuance on the ground of the absence of one of several attorneys, there should be some .assurance that he will be present at the next term; and .a continuance should never be granted on that account, unless it appears that' the ends of justice require the presence at the trial of that particular person selected by the defendant and his counsel, and a fair and impartial trial cannot be had without him. ’ ’
In the instant case, the record does not disclose that there was anything, which any witness knew, which was beneficial to appellant, which was not presented to the .jury by his counsel upon the trial, and that the absent attorney knew anything connected with the trial or the ■defense of appellant, which his counsel at the trial did not secure the benefit of for him. There is no pretense that there was any witness, who would testify to' any fact or circumstance, which was favorable to the defense of appellant, who was not present and testified, and the examination and cross-examination of the witnesses by his attorneys clearly shows that they were
(b) After the appellant had shot Bellamy, and had gone away from the place of the killing, he met with one Kazee. Kazee was offered as a, witness and after testifying as to the apparent condition of appellant at that time, the attorneys for appellant inquired of the witness, if he, at that time, had any information that Bellamy was hurt. The witness answered that he did not have any such information, until the accused came and called him and told him. The witness was then asked: “Did he (appellant) make any request of you?” An answer to this was objected to and the objection sustained. This ruling of the court is complained of. It is avowed, that if permitted, the witness would have answered that appellant did make a request of him. The avowal does not indicate what the request was, and hence it cannot be known whether the witness .should have been permitted to answer or not." The mere fact that appellant made a request, without indicating what it was, was immaterial.
Evidence was offered by the Commonwealth to the effect, that near to the place where the body of the deceased was lying, immediately after he was killed, an apple tree stood upon the edge of the road, along which the decedent was travelling at the time he was killed, and that a pistol bullet had recently been shot into the tree upon the other side from the body of the deceased, the inference being that appellant had shot the bullet while shooting at the deceased, and thus indicating the relative positions of appellant and deceased at the time. The appellant’s attorney asked of a witness, if a certain person had not informed him that he had shot the bullet into the tree. An objection was sustained to an answer to this question, and appellant complains of the ruling of the court. The decision of the court was correct, as the answer would have been simply hearsay.
The appellant testified that he was confined to a hospital for several days. He was then asked, what he did when he was discharged. To an answer to this question objection was made and sustained, and it was avowed that he would answer that he returned to the jail without the custody of an officer. This answer would have been incompetent, as evidence, as it was in the nature of a self-serving declaration, made after the alleged crime was committed, and shedding no light upon it.
(c) The appellant testified that the day upon which he killed the deceased he was passing the residence of deceased, late in the afternoon, and going in the direction of his home ; that deceased was near the road, at his wood yard, and when appellant .arrived opposite to him in the road, that deceased applied an opprobrious epithet to him and immediately assaulted him with an ax; that deceased threw the ax at him with great force and that appellant barely escaped the blow; that deceased then went toward his house for the purpose of getting a gun,.
The trial was exceptionally free from error; the evidence was sufficient upon which to submit the issues to the jury; the instructions fairly presented the entire law of the case; the appellant, from all that the record discloses, had a fair trial, and there appears to be no sufficient reason to disturb the judgment, and it is therefore affirmed.