124 Ky. 643 | Ky. Ct. App. | 1907
Opinion op the Court by
Reversing.
On January 3, 1906, appellant was indicted by the grand jury of Taylor county for the murder of Joe A. Smith. On the same day appellant filed his petition for a change of venue, accompanied by the affidavits required by the statutes. After hearing proof the court, on the ninth day of the January term, 1906, overruled the motion for a change of venue, and the defendant (appellant) was given until the April term to file his bill of exceptions. At that term of the court he filed his bill of exceptions, and renewed his motion for a change of venue, which was overruled. The case
Appellant assigns the following errors: First, the refusal of the circuit court to change the venue on appellant’s motion. Second, the admission of incompetent evidence against appellant, and rejecting competent evidence offered by him. Third, that the court erroneously instructed, and refused to properly instruct, the jury. Fourth, the court’s refusal to discharge the jury on account of the misconduct of counsel for the commonwealth during the trial.
We will take up the errors complained of in the order named.
The petition for a change of venue alleged in substance the following facts: That Smith, deceased, was extensively related in Taylor county; that his relatives were influential and prominent citizens, so numerous that there was not a precinct in the county where some relative of Smith did not reside; that they were extremely hostile to appellant, and, since the homicide, had been active in framing public sentiment
Construing the statute providing for a change of venue, this court has announced the rule to be that, when the petition and affidavits comply with the statute, a prima facie case is thus made, and, in the absence of other evidence, it is the duty of the court to change the venue. See Higgins v. Commonwealth, 94 Ky., 54, 14 Ky. Law Rep., 729, 21 S. W., 231, and Wilkerson v. Commonwealth, 88 Ky., 29, 9 S. W., 836, 10 Ky. Law Rep., 656. The petition and affidavits filed in this case made out a prima facie- case, and we are of the opinion that the evidence of the commonwealth did not overthrow it, but that the oral testimony on the whole strengthened it. In Bowman v. Commonwealth, 96 Ky., 8, 16 Ky. Law Rep., 186, 27 S. W., 870, the venue was directed to be changed by this court. It was there said: “The witnesses for the State, who think that appellant could obtain a fair trial, all save one or two, concur in the statement
But counsel for the commonwealth contend that, even if the circuit court did err in overruling appellant’s motion for a change of venue, the error was corrected by the order of the circuit court summoning a jury from Adair county to try appellant. This was done after an attempt had been made to get a jury from Taylor county. Failing to obtain even one juror, the court then ordered a jury from Adair county. In our opinion, under the peculiar and unusual circumstances of this case, that did not correct the error committed in refusing appellant the change of venue asked. It appears from the record before us that the summoning of the Adair county jury was irregular in itself. "Without the knowledge of the trial court, or of the appellant, an important witness for the commonwealth summoned the jury from Adair. This witness was introduced on the trial for the purpose of supplying a motive on the part of the appellant for the killing', other than that already stated. Aside from the fact that the person summoning the jury was himself a witness against the accused, the jury could not help but notice the very bitter, antagonistic feeling that exhibited itself on various occasions in the very presence of the jury. The court room was filled by the friends and relatives of the
Appellant’s counsel contend that the court erred in refusing to allow him to testify (and to allow bim to prove the same by his son) that his wife confessed to him in the presence of the son on Saturday before the killing, her criminal intimacy with Joe A. Smith, the deceased. This identical question was before this court in the case of Shepherd v. Comth., 119 Ky. 931, 85 S. W.191,27 Ky.Law Rep.376,where the court said: ‘ ‘ The sole question here is whether the husband might show that he got his information from his wife. That he did so get it, for the purpose of this discussion, will be assumed. . Having it, it is for the jury to say to what extent, if at all, it palliated his act. But, as shown in this record, that fact could not be brought to the knowledge of the jury except defendant proved, or some one else proved, that defendant had got such information. That he got it from his wife could take nothing from the sting of it. Its effect upon his mind and conduct must have been at least the same, if not, indeed, worse, than if it had been communicated by
Appellant offered to prove by his son, Leslie, that he heard his mother confess her intimacy with the deceased. The court excluded this, and we think rightfully so, because it was not shown that this confession by Mrs. Shipp to Leslie was communicated to appellant prior to the killing of Smith, and for that reason it could have had no effect or influence upon the mind of appellant at the time of the homicide.
Notwithstanding the court’s refusal to permit appellant to prove the confession of his wife to him in the presence of his son, the commonwealth was allowed to prove in .rebuttal, by some 20 or 30 witnesses, the best citizens of the town and surrounding community, that Mrs. Shipp was a lady whose reputation for virtue and .chastity was good, and above reproach. Of this appellant also complains. Counsel
In the case of Cowan v. Cowan 16 Colo. 335, 26 Pac. 934, a similar question was involved. In that case the court said: “The defendant was charged with having committed adultery with one -, and counsel for appellant complains the court refused' to allow them to inquire into the general reputation of said person for chastity. The argument is that, when the reputation for chastity of one is in evidence, it. is competent to show such person’s good reputation. This rule has no application under the circumstances of this case. The general reputation of the party with whom the adultery is alleged to have been committed was not in issue. She was neither a party to nor a witness, in the case. The testimony was properly refused. ’ ’ A similar question was involved in the case of People v. Hurtado, 63 Cal. 288. There the wife of the defendant, under the law of that State, was allowed to. testify that before the homicide she had confessed to her husband' (the accused) that she had
The commonwealth can break the force of this alleged confession: First, by showing that the wife did not make same, by showing that she was not at the place where the alleged confession was stated to have been made, or that the appellant and son were not there at the alleged time. Second, by impeaching the reputation of appellant and the son for truth and veracity. The attempt to show her general reputation for chastity was such that she would not likely have made such a confession involves a proposition that is new in the law of evidence. In Redus v. Burnett, 59 Tex. 582, a similar question arose. One Bedus was sued in Texas on a judgment alleged to have been obtained in Mississippi on his accounts as executor. Bedus defended in Texas, on the ground that he made no such settlement in Mississippi, or authorized any such settlement. The plain
Appellant’s objections to the instructions of the court are, in the main, based upon an alleged error in No. 6, on the question of insanity. It appears that in No. 6, as copied in the original record, the clerk, by mistake, inserted the word “not,” which materially changed the sense thereof, but has since been corrected by another and true copy of the instruction. The other instructions fairly presented the law of the case, with the exception of No. 2, on the subject of voluntary manslaughter, which reads as follows: “If
The fourth and last assignment of error, presented by appellant’s counsel, is that of the misconduct of employed counsel for the commonwealth during the trial. While it is true that the court sustained appellant’s objections, in every instance, during the trial, to improper questions, they were repeated so often they must necessarily have left an impression upon the minds of the jury hurtful to appellant. This conduct of counsel was reprehensible, and the court should not have permitted it. ' It would be tedious, and is unnecessary, to cite and comment upon all this prejudicial matter, but we will give a few instances which will illustrate his offenses. When the appellant was being cross-examined, by this counsel, these questions were asked him, to-wit: “Q. You say you didn’t want to have trouble with anybody? A. Yes, sir. Q. You have killed one man before this, have you not?” This .court has often said that it was error to undertake to impeach a defendant or witness in this manner. This was very hurtful to the appellant. These questions were asked Sanders, a witness for the defendant, by same counsel “Q. Did you ever have occasion to arrest him (referring" to appellant), or to take him home, or to get him to leave town? A. No, sir, I never did. Q. Were you here at the time he got into trouble with Coakley?” These questions were very improper, for the reason stated: He asked Patterson, a witness for the defense: “Are you the same man that testified on the motion for a change of venue that 14 generations of the Shipp family had died with their boots on?” This was an effort to show by indirection that public sentiment was strongly against appellant in the county, and that not only Shipp', but his ancestors, were lawless and desperate men.
For these reasons, the judgment of the lower court is reversed, and cause remanded for further proceedings consistent with this opinion.
Whole court sitting.