182 Ky. 246 | Ky. Ct. App. | 1918
Opinion of the Court by
-Affirming.
The appellant, John Ratliff, together with Rnde .Wooten, Nannie Wooten and Bud Couoh, was indicted, in the Perry circuit court, and accused therein of the willful murder of John Baker. Having been brought to trial, he was found guilty by the jury, which fixed the punishment to be imposed upon him for the crime, at death. His motion to set aside the verdict and grant him a new trial having been overruled, the trial court adjudged him to be guilty of murder, and to be punished with death, in accordance with the verdict of the jury, and in the manner prescribed by. law, in such cases. He has appealed from the judgment, and seeks its reversal, because, as is contended, the trial court erred to his prejudice:
(1) By overruling a demurrer to the indictment, as a whole.
(2) By overruling a demurrer to the second, third and fifth counts of the indictment.
(3) By overruling the motion, of appellant to require the Commonwealth’s attorney to elect, upon which count of the indictment, he would rely for a conviction.,
(4) By overruling appellant’s motion, made during the trial to discharge the jury, and to continue the ease, or to empanel another jury, for the trial.
(5) By misinstructing the jury and failing to instruct the jury, as to the entire law of the case.
(6) By the admission of incompetent evidence, over appellant’s objection..
(7) By overruling appellant’s motion to direct the jury to find him not guilty, and because the verdict was caused by passion and prejudice. The above contentions will be considered, in the order, in which they are stated,
(a) The indictment, in its accusative part, charges the appellant, Rude Wooten, Nannie Wooten and Bud
(1) Jointly with Rude Wooten, Nannie Wooten and Bud Couch.
(2) As an aider and abettor of Rude Wooten.
(3) As an aider and abettor of Nannie Wooten.
(4) As a principal in the first degree, with the Wootens and Couch aiding and abetting him. •
(5)As an aider and abettor of Bud Couch.
(b) For the reasons above given, the demurrers to the second, third and fifth counts of the indictment were properly overruled,- as each of the counts contained a statement of all the facts necessary to constitute the crime of murder, on the part of appellant and each of the counts made a valid indictment for that crime, when read with the accusative portion of the indictment, as it should be.
(c) The motion to require the Commonwealth’s attorney to elect upon which count of the indictment he would rely for conviction, was necessarily overruled. Such a motion could not have any merit, unless the indictment charged guilt of more than one offense. To require the prosecutor, where the modes of committing the crime alleged, are set out in different counts, to rely for conviction upon the manner set out in one particular count, would defeat the very purpose for which it is permitted to set out the different modes, in which the crime may have been committed, in different counts. The proper practice, as prescribed by the Criminal Code, subsection 3, of section 165, where more than one offense is improperly charged in an indictment,- is a demurrer to the indictment. If the indictment, improperly, charges more than one offense, and the Commonwealth’s attorney will dismiss one of the charges, the demurrer is then overruled, otherwise it is sustained. Hence, if the indictment charges only one offense, there is no basis for a demurrer upon that ground.
(d) During the course of the trial, and after a witness for the Commonwealth had testified, in chief, the appellant and his attorney learned, that the witness was a niece of one of the jurors, who had been selected for the trial of the action. They, immediately, prepared and filed their joint affidavit, which stated in substance that they were ignorant of the fact, that the juror was related to the witness at the time, the juror was accepted, and had just learned of such relation, and that if they had known such fact when the juror was accepted, they would have challenged him for cause and peremptorily and moved the court to discharge the jury and to empanel another jury, or else continue the action. This
The court instructed the jury in substance, that if appellant feloniously, willfully and of his malice aforethought killed Baker, or if Rude Wooten or Nannie Wooten killed Baker, and appellant was present and willfully, feloniously and of his malice aforethought aided or abetted-the one so killing Baker, to find him guilty of murder. Other instructions authorized the jury to find appellant guilty of manslaughter, if he killed Baker in sudden heat of passion or in sudden affray, and not in self-defense, and without previous malice, or aided or abetted Rude or Nannie Wooten in doing the killing, if he aided and abetted them in sudden affray, or in sudden heat of passion, without previous malice, and not in his or their self-defense. The jury was also, directed to find him not guilty, if he killed Baker, in his necessary self-defense, or the necessary self-defense of Rude or Nannie Wooten. The jury was directed to find him not guilty if it had a reasonable doubt of his guilt; or if he was guilty of murder or manslaughter, but it had a reasonable doubt of which, to find him guilty of the lesser offense. It is contended that the court erred to appellant’s prejudice, in instructing the jury to find him guilty, if Rude or Nannie Wooten killed Baker, and he aided or abetted
The appellant contends, that the court should have instructed the jury in reference to the proof of his testimony before the county judge and the proof of his statements to Taylor Bingham, as is provided for by section 240, Criminal Code. That section of the Code provides: “A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that such an offense was committed.’ ’
It is likewise, contended, that the court erred in the instructions, in failing to authorize a conviction of appellant if Bud Couch killed Baker, and appellant aided and abetting him in so doing, and, also, in failing to direct his acquittal, if appellant took the life of Baker, in the necessary self-defense of Couch. It is insisted, that there is as much basis, under the evidence, for the belief that Couch participated in the murder, as there is that Eude or Nannie Wooten was an actor. The evidence, however, does not support this contention. Instructions must be based upon the pleadings and the evidence. - The
(g) The appellant insists, that the admission proven by the county judge and Bingham, having been objected, to, should have been excluded, from the jury. Statements by the accused, although they do not amount to a' confession, but from which, an inference of guilt may be drawn, when considered in connection with other circumstances proven, are admissible against an accused, if freely and voluntarily made. 12 Cyc. 418; Jackson v. Com., 100 Ky. 239; Wright v. Com. 155. Ky. 750. The appellant’s testimony before the county judge was upon his own motion for bail, where he was obliged to have offered himself as a witness, and hence, it must be conclusively assumed, that he made the admissions freely and voluntarily. The statement to Bingham, who was a private citizen, appears to have been made without any inducement of advantage being held out to him or, duress of any kind imposed upon him. Hence, it was proper to admit the proof of the statements of appellant, as proven by Bingham and the county judge.
(h) The appellant at the close of the testimony, moved the court to direct a verdict in his favor. This motion was overruled, and the appellant complains of this ruling and, also, now insists that the verdict of the jury is not sustained by the evidence and that the jury was caused to make the verdict by the influence of passion and prejudice. A .reference to the statement of the facts as proven by the evidence, dissipates any basis for the contention that there was a failure of proof of facts and circumstances, tending to prove the guilt of appellant. It is the doctrine, established by a continuous line of adjudications, in this jurisdiction, that where there is any evidence, however slight, of the guilt of the accused,
The judgment, therefore, must be affirmed.