193 Ky. 215 | Ky. Ct. App. | 1921
Opinion of the Court by
Reversing.
The jury found him guilty of murder and fixed his punishment at life imprisonment. His motion for a new trial was overruled,' and judgment rendered in accordance with the verdict, and he has appealed.
A reversal of the judgment is sought for three reasons.
(1). The court erred in permitting incompetent evidence to be introduced over objection, and to which rulings of the court, the appellant excepted at the time.
(2). The court misinstructed the jury as to the law of the case.
(3). The jury consisted of only nine men, the remaining jurors were women, who were permitted to be upon the jury, over .his objection.
(a). Thomas Williams was permitted to'testify that a short time before the killing he was at the house of Crab-tree, and that Mrs. Crabtree handed him a note from the
(b). L. L. Plummer, a neighbor of deceased, was per • mitted to testify as follows:
“49. Tell whether or not, just prior to this killing, you had observed any undue friendship or acts of any sort, existing between Mrs. Crabtree and this defendant?
“A. Well, they seemed when they were together, I never saw them many times together, to be quite friendly, and the first thing I remember was when she would come about my house, or be talking to my wife, that she would use his name considerable.”
_ “The court: Used whose name?”
“A. Mr. Sain’s name. She would use his name and didn’t use some of the other boarders’ names as frequently as she did his. ’ ’
The foregoing questions and answers were all objected to, and the objections overruled, and exceptions to the ruling of the court taken at the time.
(c). Mrs. Alice Hall, a witness for the Commonwealth, over objection of the defendant, was permitted to testify that about noon, on the day the homicide occurred, she had a conversation with Mrs. Crabtree, which she detailed as follows:
“A. Well, she just called me to the fence and said: 'Mrs. Hall, I am going to leave in the morning,’ and I says ‘Where are you going?’ and she says ‘I don’t know,’ and she was telling me her and her husband didn’t*220 get along, and lie had told Mr. Sain to leave that morning, and said that Mr. Sain would have to leave and that Mr. Stone would have to leave, that was her two boarders, and we talked on, I don’t remember what all she did say for I never paid much attention to it right then. ’ ’
The appellant, while jointly indicted with Mrs. Crab-tree, was separately tried. Under these circumstances the declarations of Mrs. Crabtree, not made in the presence or hearing of the appellant, could not be competent evidence against him, and could be nothing more than mere hearsay, in the absence of evidence of the existence of a conspiracy between Mrs. Crabtree and the appellant. The principle upon which it is held that the declarations and acts of one conspirator, preceding its consummation, and not in the presence of the other, are held to be competent evidence against a co-conspirator, is that the conspirators have a common purpose and design, and for that reason that each is an agent of the other in the prosecution of the common design and the consummation of the common purpose. Day v. Com., 173 Ky. 278. The declarations, of course, must be such as are in furtherance of the conspiracy. Hence, in the trial of one for a crime, the declarations of another not made in his hearing nor presence, nor under circumstances which indicate assent thereto upon his part, are clearly incompetent as evidence against the one being tried, until at least a conspiracy to effect the purpose is shown, prima facie, to exist. The mere fact that the indictment charges a conspiracv is not sufficient to eliminate this rule, as a conspiracy might be charged when it had no foundation in fact. The evidence in this case is such that there is not sufficient ground for holding that a conspiracy existed, nor is there any evidence of Mrs. Crabtree aiding or abetting in the homicide, and, hence, the declarations of Mrs. Crabtree, not in the presence nor in the hearing of the appellant, were not competent as evidence against him.
The evidence of Plummer, as to his opinion of what the actions of appellant and Mrs. Crabtree when together indicated, is, also, incompetent, as he probably would draw a different conclusion from what the facts justified. An improper intimacy between the appellant and Mrs. Crabtree could be shown, only, by proving what the facts were, and to leave the jury to draw the conclusion as to what proof of the facts show and the opinion of a witness as to what the facts show could not be competent.
The introduction of this evidence was, in our opinion, prejudicial to the substantial rights of appellant.
The homicide occurred in the home of deceased, but in a room which the appellant occupied as a boarder, and, where nothing to the contrary being shown, he had a right to come and to be. Nothing could be more calculated to stir the passions of a jury, to the point of ignoring the evidence offered by the appellant in justification of his conduct, than to prove that he had alienated the affections of the wife of the victim, and then to have killed him because he objected; or to have proven that deceased had requested the appellant to remain away from his home, and that appellant, in utter disregard of the rights of deceased to maintain his home without any intrusion of any objectionable person, and without any regard to the rights of the deceased ancl over his protest, had invaded his house, resulting in the death of the deceased. Such facts, if true, were competent to be proven, but not by mere hearsay.
(d). The judgment would not be reversed for the defect in the instructions complained of, if such defect was the only error, as it scarcely seems that such an error would have been prejudicial, but in the event of another trial, the court should give the following instruction upon the subject of the right of self-defense, instead of the one which it did give, the phraseology of which does not clearly state the law of self-defense: “If the jury shall believe from the evidence that at the time the defendant shot W. S. Crabtree, if he did do so, he in good faith believed and had reasonable grounds to believe, that he was then and there in danger of death, or the infliction of some great bodily harm, at the hands of Crabtree, and there appeared to defendant, in the exercise of a reason
Having arrived at the conclusions above stated, it is unnecessary to pass upon the third ground relied upon for reversal, and besides we have recently held that such ground is unavailing to reverse a judgment in a criminal trial. McLaughlin v. Com., 192 Ky. 206.
The judgment is therefore reversed and cause remanded for proceedings not inconsistent with this opinion.