133 Ky. 284 | Ky. Ct. App. | 1909
Opinion of the Court by
Affirming.
The homicide occurred in Harlan county, at the residence of Mrs. Bettie Clemn, a widow, under the the following circumstances: Tweed, in passing the house of Mrs. Clemn, stopped to reply to.an inquiry she made of him about her cows, which had wandered from home. .He was riding a mule, had a bucket on his left arm, and carried in a holster suspended by strap from one shoulder, a six-shooter Colt’s pistol. While talking with Mrs. Clemn, Tweed remained on his mule. According to her testimony, he had barely answered her inquiry when a gun was fired from some point near by, immediately following which he fell from the mule to the ground. After he fell to the ground, three other shots were fired from the same direction. During the firing of the gun, Mrs. Clemn, who had been standing in front of her house while talking with Tweed, being frightened by the shooting, ran into the house and closed and locked the doors. She did not see the person by whom the shots were fired at Tweed, but after entering the house looked out of a window and saw that Tweed was still on the ground, and apparently dead. After an interval of some minutes Mrs. Clemn recovered her composure sufficiently to send her little daughter to inform some of her neighbors of the homicide. Several of them went at once to her house, and upon
According to the evidence, deceased became an enemy of appellant because the latter as a witness testified against him in a prosecution for a misdemeanor, and later appellant became very greatly incensed at deceased because he circulated in the community in which both lived a charge that he had detected appellant in the act of committing a nameless crime. The above evidence was introduced for the purpose of proving, and was competent to prove, the ill feeling existing between the parties, and show a motive for the homicide.
When arrested appellant admitted that he shot and killed Tweed, but claimed to have done it in his necessary self-defense. His testimony upon the trial was to the effect that he had for several months gone to his work as a miner by an unusual route in order to avoid a difficulty with deceased, who lived on the usual route; that he accidentally met deceased at the
However harsh may have been Tweed’s mistreatment of appellant, or however great the latter’s apprehension of injury -or death at his hands, these things did not justify the assassination of Tweed, and the fact that the act was assassination proved the malice necessary to authorize the verdict declaring it murder.
Appellant asks the reversal of the judgment of conviction because he was tried by a jury summoned from Bell county, instead of from Harlan county; his contention being that the circuit court should at least have made an effort to secure a jury from Harlan county before procuring one from another county. We find no just ground for this complaint.
But, if the action of the court complained of could be pronounced error, we are without power to correct it, because expressly deprived by Section 281, Cr. Code Prac.,of jurisdiction to review the decision of the trial court in the matter of the selection of the jury. Mosely v. Commonwealth, 84 S. W. 748, 27 Ky. Law. Rep. 214; Howard v. Commonwealth, 118 Ky. 1, 80 S. W. 211, 81 S. W. 704, 25 R. 2213.
Appellant also complains that instruction No. 3 does not correctly give the law on the point with respect to which it was intended to advise the jury. This complaint is without merit. While not in the form usually followed, the instruction does not, as claimed, assume that appellant was guilty of murder
Finally, it is contended that the judgment should be reversed because during one day of the trial a special judge presided, instead of the regular judge of the court. This contention is also unsound. The orders appearing in the record show that at one time during the trial the regular judge of the court was sick and unable to preside, and that appellant’s counsel then agreed with the commonwealth’s attorney that a special judge might be selected to preside during the absence of the regular judge, pursuant to which agreement appellant, his counsel, and the commonwealth’s attorney agreed upon and selected the special judge, who was a member of the Harlan county bar and possessed all the qualifications required of a circuit judge; that the special judge thus selected was duly sworn and did act as special judge by presiding one day of the trial, vacating the bench on the morning of the following day to give place to the regular judge, who had recovered from his illness; and that the latter then resumed his place and continued to preside in the case until its close.
There was no error in this matter. Section 968, Ky. St., (Russell’s St. § 2824), provides: “When, from any cause, the judge of the circuit court fails to attend, or being in attendance cannot properly pre
It will be observed that this statute gave the parties the right to agree upon- and select a special judge, and, having done so, .appellant will not be heard to complain of the failure of the regular judge to preside throughout the trial, or allowed to repudiate his own act of taking part in selecting a special judge to take the place of the regular ju.dge during the time he was incapacitated from service by illness. However, the record fails to show that appellant excepted to the vacation of the' bench by the regular judge, or to the right of the special judge to preside in his absence. This, in the absence of any other reason would prevent us from considering the complaint.
Our examination of the record convincing us that appellant had a fair trial, the judgment is affirmed.