202 Ky. 50 | Ky. Ct. App. | 1924
Opinion of the Court by
Affirming.
The appellant, Yirgil L. Page, was indicted on April 12, 1923? in Daviess county, Kentucky, with one Lonnie Page, his son, charged with jointly assisting, aiding, abetting, counseling and encouraging each other to commit the offense of assault and battery on the person of J. D. Hamilton, a neighbor who resided near them in the Green river district; and when tried at the next term of the court they were found guilty by the jury and a fine of $200.00 was assessed against each of them, and from this judgment they appeal.
It appears that J. D. Hamilton lived on the farm of George Nanz, six miles from Owensboro, and on it was a tobacco barn in which was stored a crop that had been
In the testimony of appellant he claims that during the difficulty Hamilton drew a knife and attempted to cut his son, Lonnie, who also testifies to this effect, and states that when he was striking and beating Johnson the latter was endeavoring to cut him, which, however, is not corroborated by other witnesses; and it would seem scarcely possible or consonant with reason that one armed with a knife would be seriously kicked, beaten and bruised without inflicting some injury upon his assailant.
In his motion for a new trial attorney for appellant sets out five grounds upon which he relies for a reversal:
“1. The court erred to the prejudice of the defendants and each of them by permitting the Commonwealth’s attorney in stating the case to the jury to state to the jury over the objection of the defendants and each of them that the defendant, Yirgil Page, had been threatening to do the prosecuting witness, J. D. Hamilton, injury, and was a bad man, and this was entirely prejudicial.”
We can see nothing objectionable in the remarks of the Commonwealth’s attorney if he said to the jury that he expected the proof to show threats on the part of appellant towards the man afterwards assaulted. However, in his brief attorney for appellant makes no mention of this objection or of several other grounds cited, and this court has hitherto held in Middleton v. Commonwealth, 198 Ky. 625, as well as other eases, that grounds relied upon for a new trial, if not mentioned or argued in the brief of appellant,, will be considered as an abandonment of such grounds; and in pursuance of this policy we will consider only those grounds upon which appellant seems to rely.
Appellant strenuously contends that the court erred in instructions 3 and 6, claiming that they did not follow the indictment in which appellant and his son were charged jointly with the commission of the offense, but alleges that the instructions 'went beyond the charge in the indictment and gave instructions that the jury might find either guilty of acting as principal and the other of aiding and abetting; and further that the jury might convict each of them if they did it alone; and claims that the indictment does not accuse either of them of assaulting
“A statement of the acts constituting the offense, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended, and with such degree of certainty as to enable the court to pronounce judgment, on conviction, according to the right of the case.”
And Mulligan v. Commonwealth, 84 Ky. 229, in which we find:
“In order to convict one as aider and abettor, the principal must be indicted jointly with him; or, if he be indicted alone, the indictment must disclose the name of the principal, and give a description of his acts.”
However, in the case at bar neither of the defendants was indicted alone but jointly, and either of them could have been the principal and the other, the aider and abettor. Attorney for appellant contends that he was notified by the indictment in this case that he was charged with the offense of acting jointly with Lonnie Page in making an assault, and says the instructions should have gone no further than to have told the jury that if he did act jointly with Lonnie Page to find him guilty; but that the court did not content itself with instructing the jury that far, but went beyond the charge in the indictment and authorized the jury to find him guilty if he did it alone.
The court offered ten instructions, which were necessarily long and contained much useless repetition; but it would seem to us that they were in nowise prejudicial to the rights of appellant and would appear more in his favor than otherwise.
We find in the case of Tucker v. Commonwealth, 145 Ky. 84:
“It is a well settled rule that instructions applicable to every state of case dedueible from the testimony, or supported by it to any extent, should be given.”
This was a joint indictment and it was made clearly to appear that both the appellant, Virgil L. Page, and
“Where two persons are jointly tried for murder and there is proof tending to show that "both defendants were guilty, both oases should be submitted to the jury; and one of them having been acquitted and the other convicted, the latter cannot complain, upon appeal, that both cases were submitted to the jury.”
In the case at bar, while the instructions were probably prolific, they could not have been misleading to the jury, and under the Code a judgment of conviction could not be reversed unless upon the whole record it appears that the defendant’s substantial rights were prejudiced.
It is further earnestly contended that the Commonwealth’s attorney asked certain improper questions of two witnesses named Miliay, who testified for appellant. It seems that in a trial a few days prior to this ease, one Steve Millay, testifying in another action, had made certain statements which were disbelieved by the jury and of a nature calculated to thoroughly discredit him as a citizen or a witness; and during the examination of the two witnesses mentioned by the same name, appearing in behalf of appellant, the Commonwealth’s attorney asked them if they were related to Steve Millay, who had testified in that court in another case, and they answered in the affirmative. We feel the Commonwealth’s attorney was entirely within his rights in these questions, and in any event no objections were made nor exceptions taken by appellant’s attorney at the time, although he claims he did not know of Millay’s reputation until after appellant had been convicted and could not have; realized the necessity or wisdom of objecting at the time the questions were asked.
Upon the entire record it appears that appellant has had a fair trial and the verdict is fully supported by the weight of the evidence. The judgment is, therefore, affirmed.