172 Ky. 714 | Ky. Ct. App. | 1916
Opinion op the Court by
Affirming.
Briefly stated, the facts shown by the evidence of the Commonwealth were that Williams was hired by appellant to burn the packing-house and assured by him that as the property belonged to him (appellant) there would be no danger in his doing so. Williams when first spoken to by appellant on the subject seemed *reluctant to undertake the service required of him, but in a later interview with appellant agreed to do so upon the latter’s promise to pay him $250.00. Thereupon, at the request of appellant and with money furnished by him, Williams purchased in Cynthiana, where they both resided, five gallons of coal oil, two gallons of which were bought at one place, two at another and one at a third place. This coal oil he took to appellant, who put the whole of it in a five-gallon jug and at the time requested Williams to return the next morning and take the boxes for him to the railroad station at Cynthiana, for shipment to the packing-house at Marshall station, in Mason county. On the following morning, which was December 6, 1915, Williams went to appellant’s house as requested, was given by the latter a railroad ticket entitling him to ride from Cynthiana to Marshall station and asked by him to take the two boxes to the station and have them checked to Marshall station, at the same time informing him that one of the boxes, which was about seventy pounds heavier than the other but of the same size, contained the five gallons of coal oil purchased the previous day. Williams had the boxes checked to Marshall station as directed, but by further direction of appellant did not himself go to Marshall station that day. On the morning of the next day,
The facts thus far stated were furnished by the testimony of Williams alone. Williams was arrested in Cynthiana on the 19th day of January, 1916, charged with the burning of appellant.’s packing-house and immediately thereafter taken to Maysville where he was incarcerated in jail. On the next day he called appellant up by telephone, informed him of his arrest and demanded his assistance in being released from jail. Appellant went at once to Maysville in his automobile and •upon getting there immediately saw and talked with Williams at the jail. Before his arrival at Maysville, however, Williams had confessed his guilt to the local officers, but this fact was unknown to appellant until some time the next day. One Stewart, a detective in the employ of the Chesapeake & Ohio Railroad Company, had been engaged by a member of the state fire marshal’s department to investigate the burning of appellant’s packing-house. Knowing of the coming of appellant Stewart placed himself in a pell close to that in which
Williams said to appellant, “Was the place insured?” To which the latter replied, “Hell, yes, for four thousand dollars.....that is what they are after, they don’t want to do a damn thing with you. ’ ’ Appellant also said, “Don’t talk so loud, someone might be listening,” to which Williams replied, “I guess not.’’ Following this statement Williams also said, “I want some money. My wife is sick and I am in trouble.” Appellant then told him, “I will go by and give her some.” Upon being-asked by appellant who identified him Williams said, “Captain Hibler'and the chief detective, Helm; he got my footprints and everything.” Appellant then said, “We are as smart as him; don’t give it away; I will get some witnesses to get you out.” To which Williams replied, “All right, go ahead and do so.”
Appellant’s arrest followed this interview. Stewart, upon being- introduced as a witness by the Commonwealth, fully corroborated the testimony of Williams as
Appellant, testifying in his own behalf, admitted the purchase of the railroad tickets on December 6th and the checking of the two boxes, as described by Williams, from Cynthiana to Marshall station as baggage, but denied ' that the boxes contained coal oil or that any coal oil was purchased for him by Williams. He also denied that he hired Williams to burn the packing-house, showed him how to burn it, or that he for that purpose paid him any of the sums of money Williams claimed to have received' from him to bum the packing-house. He admitted the interview with Williams in .the jail referred to and that he made an effort to get him released from custody, but denied that he made, in any conversation with Williams, the statements, or any of them, attributed to him by the testimony of Williams 'and Stewart. In support of appellant’s testimony that the two boxes sent by him from Cynthiana to Marshall station did not contain coal oil, he introduced two witnesses, Cooper Fitch and Arthur Lemons. Fitch testified that he carried the boxes from the depot at Marshall station to appellant’s packinghouse and saw them opened upon their arrival at the latter place; that one of them contained bed clothing and the other saws, hatchets, hammers and nails, and nothing more. Lemons testified that he went with appellant' on the train from Cynthiana to Marshall station that carried the two boxes; that he saw their 'contents before leaving Cynthiana and that there was nothing in either
In addition to the evidence already mentioned, appellant introduced a number of witnesses who' testified as to their familiarity with the reputation of Ennis Williams for veracity and morality and that it was bad. The Commonwealth did not attempt to prove a good reputation for Williams. Indeed, its counsel concede it is as bad as testified by appellant’s witnesses, but insist that no other evidence was necessary to show it bad than was furnished by his confession that he burned the packing-house and was hired by appellant to do so; and, obviously, if the building was burned by appellant’s procurement, he would naturally have called upon a man of bad character like Williams to commit the crime. Notwithstanding the bad character of Williams, it appears from appellant’s own testimony that he had him in his employ at the packing-house and elsewhere for several years and, indeed, down to within a few days of the burning of the packing-house. However unworthy of belief the jury, under other circumstances, might have been disposed to regard Williams, the strong corroboration given his testimony by that of Stewart as to appellant’s admissions of his guilt at the jail, the conduct of appellant in hastening to his relief when informed of his arrest and in trying to procure his discharge from jail, together with his removal and shipment from the packing-house just before the fire of the entire product of the business therein, and
The state of case made by the evidence here is that it establishes both the conspiracy and commission of the crime contemplated by the conspiracy, by the confession in court of Williams, one of the conspirators, and the latter’s testimony of the admission by appellant, the other conspirator, of his guilt, such testimony being corroborated by that of a third person, in whose presence and hearing the admission was made; in addition to which, Williams’ testimony as a whole is corroborated by other evidence in the record, previously indicated, tending to show the commission of the crime, the circumstances thereof, and to connect appellant with its commission. Sections 240, 241 Criminal Code; Green v. Commonwealth, 26 R. 1221; Patterson v. Commonwealth, 99 Ky. 610. The competency of the testimony of Williams and Stewart as to the admissions of guilt made by appellant to the former, is not affected by the fact that they were obtained in an interview between Williams and appellant arranged for the purpose, at which Stewart was a concealed witness, that his presence might not be known to appellant, for a confession of the accused out of court is competent evidence against him, although it may have been procured by deception. Wigginton, etc. v. Commonwealth, 92 Ky. 282. To render evidence of such confession incompetent, it must have been influenced by promises, threats or advice of the prosecutor or officer having the prisoner in charge, or of anyone having him in duress or having authority over him. Young v. Commonwealth, 8 Bush 366; Rector v. Commonwealth, 80 Ky. 468; Butler v. Commonwealth, 2 Duvall 435; Taylor v. Commonwealth, 19 R. 386.
After a careful consideration of the evidence, we are unwilling to say that it was not sufficient to authorize the verdict.
Although twenty-two grounds were urged by appellant in support of his motion for a new trial made in the court below, we will consider only such of them as are relied on by his counsel in asking a reversal of the judgment; it being a well known rule of this court that
The matters complained of as error in the brief of counsel are: (1) Refusal of the trial court to quash the indictment; (2) failure of the trial court to admonish the jury of the purpose for which they might consider the testimony of the witness James Wadsworth; (3) failure to admonish the jury as to the purpose for which they might consider the testimony of the witness James Mackey; (4) failure to properly instruct the jury; (5) failure to sustain appellant’s motion in arrest of judgment.
Appellant’s first complaint cannot be considered by ns. We are precluded from doing so by section 281, Criminal Code, which provides:
“The decisions of the court upon challenges to 'the panel, and for cause, or upon motions to set aside an indictment, shall not be subject to exceptions.”
Appellant’s second complaint cannot be sustained. The trial court was not required to admonish the jury as to the purpose for which James Wadsworth’s testimony might be considered. It more than conduced to show the motive of appellant for committing the crime. It wa.s substantive evidence because necessary to show a fact essential in establishing appellant’s guilt; that is, Wadsworth’s testimony showed that there was at the time of the fire insurance upon the property burned, which had been procured and paid for by appellant; and the crime denounced by the statute, and charged in the indictment, of which appellant was convicted, was the burning of a house upon which there was insurance. The language of the statute, section 1169, Kentucky Statutes, being:
“If any person shall wilfully and unlawfully bum a powder house.....; or dwelling house or other building, or house upon which there is any insurance or lien, he shall be confined in the penitentiary not less than one nor more than six years.”
Besides, if it were true, as contended by counsel for appellant, that the testimony of Wadsworth was competent only for the purpose of showing a motive on the part of appellant for the burning of the building, the failure of the court to admonish the jury that it could be
For the reason last stated we are unable to consider appellant’s third complaint, referring to the trial court’s failure to admonish the jury as to the purpose for which the testimony of the witness James Mackey might be considered. It is, therefore, unnecessary for us to decide whether the testimony of Mackey was of a substantive character, as argued by counsel for the Commonweálth, or only competent for the purpose of contradicting the appellant, as contended by his counsel, as it does not ap- ¡ pear from the record that the .trial court was requested by appellant to admonish the jury as to the purpose of: its admission, nor that the failure to give such admoni-, tion was at the time objected to by him.
The objections urged in appellant’s fourth complaint, to the instructions given by the trial court, are without, merit. The first of these objections is to instruction No., 3, it being insisted that the direction it gave the jury,’ if it found appellant guilty, to fix his punishment as pro-, vided by section 1136, Kentucky Statutes, known as the Indeterminate Sentence Law, was error, because that law* was repealed before the indictment under which he was. convicted, was returned. This contention ignores the fact that the section of the statute, swpra, was not re-’ pealed until March 23, 1916, consequently it was in force December 16, 1915, when the crime of which appellant was convicted was committed, and we have repeatedly held that the law in force at the time the crime was committed must control the court in giving its instructions,; and the jury in fixing the defendant’s punishment, if found guilty of the crime. Therefore in this case the law in force when the indictment was returned or the appellant was tried could not properly have been applied by the court or jury in fixing his punishment. Quinlan v. Commonwealth, 149 Ky. 476; Dial v. Commonwealth, 142 Ky. 32; DeMoss v. Board of Prison Com’rs, 157 Ky.
Appellant also complains of the failure of the court to define in the instructions the words “criminal conspiracy,” “motive,” “willful,” “willfully,” “maliciously” and “feloniously.” We fail to find anywhere in the instructions the words “criminal conspiracy,” consequently it was not necessary that that term be defined. It is true the word “conspiracy” appears in instruction No. 1, but as that instruction advised the jury that in order to find appellant guilty of the crime charged in the indictment it was necessary for them to believe from the evidence beyond a reasonable doubt, first, that there was a conspiracy between appellant and Williams, the object of which was to set fire to and burn the former’s packing-house, and second, that it must have been burned in pursuance of such conspiracy, this statement of the law did, in effect, constitute such a definition of the word conspiracy that the jury could not have failed to understand its legal meaning. We also fail to find the word “motive” in the instructions, hence a definition of its meaning was not required, nor can its absence be said to have been prejudicial to any substantial right of the appellant. While the words “willful,” “willfully,” maliciously” and “feloniously,” appearing in the instructions, might properly have been defined by the court therein, we have held that the failure to do so, particularly where the instructions as aptly state the law as was done in this case, will not authorize a reversal of the judgment. Banks v. Commonwealth, 145 Ky. 800; Collier v. Commonwealth, 160 Ky. 338; Nichol v. Commonwealth, 169 Ky. 491; Rucker v. Commonwealth, 171 Ky. 276.
We fail to see any reason for appellant’s criticism of instruction No. 4, which is as follows:
“Unless the jury believe from all the evidence, beyond a reasonable doubt, that the defendant has been proven guilty, they will find him not guilty.”
In the form given the instruction substantially follows the language of section 238, Criminal Code, which declares:
“If there be a reasonable doubt of the defendant being proven to be guilty, he is entitled to an acquittal.” Mearns v. Commonwealth, 164 Ky. 213.
Appellant’s final and most strongly urged contention is that the trial court erred in overruling’ his motion for an arrest of judgment. The single ground upon which the motion could have been based is that allowed by section 276, Criminal Code, which provides:
‘ ‘ The only ground upon which judgment shall be arrested is that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court.” !
It is not denied by appellant’s counsel that the indictment, in alleging the facts constituting the offense and describing the building burned, substantially follows the language of the statute which itself fully describes the offense, but complained that the indictment does not state a public offense because of its failure to allege that the building burned was insured against loss by fire. It will be observed from a reading of its language that the statute nowhere provides that in order to constitute the offense the house or building burned should be insured against fire. The mere allegation in the indictment that the building burned was insured seems to state a public offense. "Whether, if it were shown on a trial of one indicted under the statute that the insurance upon the property was not against loss by fire, but against its loss by lighting or cyclone, a public offense would be proven, is
If correct in this' conclusion, no reason is perceived for holding that the indictment should not be declared sufficient, even on demurrer, and certainly none for holding that it does not state a public offense. Obviously, appellant knew that the insurance on the building burned was insurance against loss by fire, and an allegation in the indictment that such was its character was, therefore, unnecessary. In Wright v. Commonwealth, 155 Ky. 750, the appellant Wright was convicted under an indictment under the same section of the statute here involved, which charged him, and others with the crime of burning a warehouse upon which there was insurance. The indictment, like that in the instant case, did not allege that the insurance on the warehouse was fire insurance. One of the grounds urged for a reversal was error of the trial court in overruling the appellant’s demurrer to the indictment. We rejected this contention by holding the indictment good. It is true the objection here made, that the indictment failed to charge a public offense, was not urged in that case as a ground for sustaining the demurrer, but as in passing on the demurrer the court was not confined to the particular objections made to the indictment, but must be presumed to have passed upon its
Under section 340, Criminal Code, a judgment of conviction will not be reversed except when upon a consideration of the whole case the Court of Appeals is satisfied that the substantial rights of the defendant have been prejudiced. It is not every error of law on the record that will justify a reversal, but every error relied on will be subjected to the test, did it prejudice the substantial rights of the accused’? If it did, a new trial will be ordered; if it did not, an affirmance of the judgment of conviction will necessarily result. Overstreet v. Commonwealth, 147 Ky. 471; Parish v. Commonwealth, 136 Ky. 77; Hargis v. Commonwealth, 135 Ky. 578; Henson v. Commonwealth, 139 Ky. 173; Middleton v. Commonwealth, 136 Ky. 354; Read v. Commonwealth, 138 Ky. 568; Gordon v. Commonwealth, 136 Ky. 508; Oldham v. Commonwealth, 136 Ky. 789.
Application to the record in this case of the rule referred to furnishes no ground for disturbing the verdict of the jury or judgment of the lower court, hence the judgment is affirmed.