170 Ky. 560 | Ky. Ct. App. | 1916
Opinion op the Court by
Beversing.
The appellant, Lonis Pace, was separately tried and convicted of voluntary manslaughter under an indictment jointly charging him and one Milt Mansfield with the murder of Boh Thurman, a police officer of the city of Glasgow; his punishment being fixed by the verdict of the jury at confinement in the penitentiary not less than eight nor more than twenty-one years. Prom the judgment entered upon the verdict he prosecutes this appeal.
There were several counts in the indictment, the first charging a conspiracy between. Mansfield and Pace to commit the murder, and its joint commission by them in pursuance of such conspiracy. In the. subsequent counts each is charged with the commission of the crime of murder as principal and the other as being present, aiding, abetting and assisting in its commission. Mansfield was first tried under the indictment resulting in his conviction of the crime of murder, the verdict and judgment fixing his punishment at confinement in the penitentiary for life. On appeal the judgment was affirmed,
Robert Thurman, the deceased, was known to be a fearless officer who had for a number of years served as marshal or policeman in various cities of the State other than Glasgow, and in the latter city had shown himself especially vigilant in suppressing the illegal sale of whiskey. The salient facts leading to and resulting in the homicide are as follows: About 10:30 o’clock . on the night of September 18, 1914, Thurman was called up by telephone at the Murrell Hotel by Alex Abston, ’ a boy, who, by direction of Richard Chism, requested him to go to the latter’s house on Page’s Heights and arrest the appellant, Louis Pace, for disorderly conduct. When the telephone message reached the hotel, Thurman, who was a boarder there, had retired for the night, but upon being advised by Hatcher, the hotel clerk, of the telephone message, he immediately got up, and, putting on his clothing, except his coat, went directly to Chism’s residence. When Chism sent the Abston boy to call Thurman over the telephone, the appellant, Pace and Milt Mansfield were both at his house, as was Mary Chism, a daughter of Richard Chism. Mansfield and Pace had whiskey in their possession, of which they and Chism and his daughter had been drinking. Pace, being greatly intoxicated, had thrown himself upon a bed in Chism’s house, which act and his refusal to get up from the bed and leave the premises, gave offense to Chism and caused the latter to have the officer telephoned to come and arrest him. Neither the appellant nor Mansfield saw or' heard Chism direct the Abston boy to telephone Thurman to come and make the arrest. Mansfield left the Chism residence shortly before the arrival there of Thurman and was not present when the latter reached the house. Before Mansfield left, however, Mary Chism said to Tobe Archer, á boy who was at the Chism house, “Milt (Mansfield) says if Thurman come to arrest him, God damn him, he was going to kill him.” When this statement was made, Mary Chism was standing about the middle of the porch in front of the open door leading into the room and the appellant Pace and Mansfield were, standing about the middle of the room. ' .
.Upon Thurman’s arrival he arrested the appellant Pace, took him from the house and started toward the
The appellant, Pace, was not as definite as Mansfield in his statements as to what occurred at the time of the shooting. He, however, claimed to have seen Thurman strike Mansfield with the pistol and testified that the blow was accompanied or instantly followed by the shot which caused Thurman to fall to the street. Both Mansfield and Pace denied that either of them kicked or cursed Thurman after he fell to the street. According to their further testimony, they went from the scene of the killing to the Poster Hotel, which they entered at the back entrance and went up to the room of Morris Botts, where Mansfield exchanged his bloody shirt for a clean blue shirt of the same color as the 'one he took off, borrowed of Botts. After exchanging shirts, Mansfield or Botts rolled up the bloody shirt in an old newspaper and left it on the floor of the room, where it was found the next morning. Both Mansfield and Pace then left the Poster Hotel and went to the courthouse steps, where they sat down and with Carleton Collins drank of the whiskey which Pace had. While they were sitting there, people passed discussing the homicide, but they said nothing about it. Among others who came along was Trigg, the sheriff, who asked them whether they had seen one, Jess Whitmey. Shortly thereafter they went to their homes, Mansfield going by the Childers house to get his coat, which he left there earlier in the night. Mansfield and Pace were arrested on the following morning, the former being at his home and Pace at the printing office where he had gone to begin work for the day.
The testimony of the witnesses for the Commonwealth who saw Thurman kicked after he was shot and heard the exclamations made at the time, while strongly conducing to prove that the accompanying statements or exclamations were made by the person who did the kicking, were unable to identify either of the two men
A number of experts were introduced — gunsmiths and others familiar with the Smith & "Wesson make of pistol, like the one with which Thurman was shot — some of whom testified that such a blow as Mansfield claimed was given him on the head by Thurman with the pistol, would not have discharged the weapon; while others testified with equal positiveness that it was possible and altogether probable that the pistol could have been discharged in that way. In addition to the evidence mentioned, twenty-two witnessés were introduced as to the character of the appellant Pace, who had known him, all his life and all of whom testified that he was thirty-one years of age, had worked as a compositor in the Glasgow Times office for more than fifteen years; that he was a quiet, peaceable, orderly citizen, and that his reputation for peace, amiability and good order was as good as that of any man in-the community; that he had never before been charged with a crime and that though addicted to the habit of intoxication, even when drunk, he was always peaceable and good humored.
It will be seen from the foregoing outline of appellant’s evidence that his defense was based upon the ground that the death of Thurman was an accident, re-' suiting from his own act. in striking Mansfield with his pistol, and that in no event did he, appellant, aid or abet
One of the grounds strongly urged by appellant’s counsel for a reversal of the judgment of conviction is that the verdict is unsupported by and flagrantly against the evidence and that the trial court erred in refusing the peremptory instruction directing a verdict of not guilty, requested by him at the conclusion of the evidence. The contention as to the peremptory instruction rests, of course, upon the theory that there was no evidence to authorize or support the verdict. It is a recognized rule in. this jurisdiction that if, on appeal, it be found that the evidence contained in the record, though conflicting, was sufficient to warrant the submission of the case to the jury, that fact will prevent the reversal of the judgment on the ground that the defendant’s acquittal should have been directed by a peremptory instruction. It is only in the absence of any evidence tending to establish the guilt of the accused that the trial court will be authorized to grant a peremptory instruction directing his acquittal. In other words, the verdict of the jury on. conflicting evidence, as to the cause or circumstances of a homicide, is, as to the question whether a peremptory instruction should have been given, conclusive on review. Carter v. Commonwealth, 130 Ky. 240; Lewis v. Commonwealth, 29 R. 820; Tompkins v. Commonwealth, 28 R. 642. Here the evidence showed that appellant and Mansfield were the only persons present when the homicide occurred; that Thurman was killed by a pistol shot while he had appellant under arrest for drunkenness, which arrest the intoxicated condition of the latter authorized him to make without a warrant; and that the shooting of the officer occurred in an altercation between him and Mansfield growing out of the demand of Mansfield and appellant for appellant’s release from custody by the officer. The jury may have concluded from this evidence that appellant’s- desire to be released from arrest furnished a motive for his assisting Mansfield in shooting Thurman, and though the abuse and kicking of the latter after he was shot may have been, as much of the evidence conduced to prove, from Mansfield alone, the fact that appellant made no attempt to restrain or prevent such abusé and kicking on the part of Mansfield, they also had the right to consider in determining whether he was aiding or
Appellant’s complaint of instruction No. 2 defining what constitutes a conspiracy and in what state of case the jury might find that the killing of Thurman resulted from a conspiracy between appellant and Mansfield, must be sustained. The only competent evidence introduced to establish the alleged- conspiracy were the mere facts that they were together for several hours before the shooting of Thurman; the only persons present when he was shot, and that they remained together for a time subsequent to the -shooting and gave no information thereof to others. This evidence was insufficient to establish the alleged conspiracy. It is true a conspiracy may as well be shown by circumstances from which the jury may infer it, as by express acts or facts; and further true that it is rarely shown by direct and positive testimony; but to establish a criminal conspiracy there must be shown by facts or circumstances a joint assent of the minds of the accused to commit the criminal act charged. Such evidence is wholly wanting here, hence the giving of instruction No. 2 was error. It is, however, insisted for the Commonwealth that appellant could not have been prejudiced by this instruction, as it only applied to the crime of murder, whereas he was found guilty of voluntary manslaughter, to which it had no reference. While this is true, the instruction was calculated to magnify the prosecution in the minds of the jury, and though the existence of a conspiracy was not an element essential to the showing of his guilt of manslaughter, we cannot speculate as to whether the jury were or were not influenced by it in finding him a participant in the homicide. The other instructions given in the case fully pre
Appellee’s complaint of error in the admission by the trial court of the testimony of the boy, Tobe Archer, as to the statement of Mary Chism that “Milt (Mansfield) says if Thurman come to arrest him, God damn him, he was going to kill him,” must also be sustained. It appears from the testimony of Archer that this statement was made by Mary Chism before Mansfield left the Chism residence and also before the arrival there of Thurman. It does not, however, appear from his testimony whether the statement in question was made before or after Thurman had been telephoned for by Alex. Abston, at the direction of Richard Chism. According to Archer’s further testimony, when Mary Chism repeated the alleged threat made by Mansfield, he (Archer) was standing near and in front of the porch of the Chism house, Mary about the middle of the porch, in front of the door leading into the house and that the door was then open and appellant and Mansfield were standing together about the middle of the room, in the rear of Mary Chism. After repeating the statement made by Mary Chism, the witness was asked as follows:
“Q. "Was that in their presence and hearing? A. I suppose they could hear. Q. You mean she came out on the porch and they were standing in the middle of the room when Mary made this statement? A. Yes, sir. Q. Do you know whether they were close enough to hear? A. Well, if they had been listening they were close enough to hear, yes, sir.”
The most that can be said of the foregoing testimony of Archer is that appellant and Mansfield were standing where they might or could have heard the statement of Mary Chism if they had been listening, but it stops short of showing that they were listening to what Mary said or that they, in fact, heard her statement. Whether appellant and Mansfield were then talking to each other or to Richard Chism, who was also in the room, cannot be told from Archer’s testimony. If any presumption is to be indulged from the facts related by the witness, it would reasonably be expected that if appellant or Mansfield heard the statement made by Mary Chism it would have induced some response or comment from one or both of them; but Archer admits that no response was made, nor does he testify as to anything subsequently;
■ The prejudicial effect that must have resulted to appellant from the admission of the statement of Mary Chism as related by Archer cannot be doubted, as it' was the only evidence furnished to support the theory of the prosecution that appellant was apprised in advance of the killing of Thurman of the intention of Mansfield to kill him; and also conduced to prove that whatever participation he had in the killing of Thurman by Mansfield was in aid of the previously expressed intention of the latter to take his life. Consequently, the admission of this incompetent evidence, if there were no other error appearing in the record, is, of itself, sufficient to compel the reversal of the judgment of conviction.
It will be unnecessary to discuss other errors assigned by appellant,' as they are not, in our opinion, sufficient to ■ require a reversal and are not likely to be again committed by the court on another trial. On 'ae-.