126 Ky. 441 | Ky. Ct. App. | 1907
Opinion op the Court by
Reversing.
At the November term, 1906, of the Garrard circuit court, John Simpson, Jones Simpson, and Curt East were jointly indicted for the murder of Bud Casey; the indictment charging each defendant with the main offense and each of the others as an aider and abettor, and further charging that the murder was committed by either striking the deceased with a blunt instrument or by burning his house. When the ease was called for trial Curt East asked for a separate trial. John Simpson and Jones Simpson were then tried, convicted, and their punishment fixed at confinement in the penitentiary for 21 years. John Simpson alone appeals.
The following facts may be deduced from the evidence: About 1 o’clock on the morning of Monday, September 17, 1906, the neighbors were attracted to the house of Bud Casey by the light of flames. When the neighbors arrived on the scene they found the house almost destroyed. They also found the body of Bud Casey ‘ ‘ 15 inches from the wall and 18 inches from the corner of the house, and it lay almost straight, but a little curved to the right, throwing the right side of his head to the fire. ’ ’ There was a hole in the top of Casey’s head, indicating that he had either been struck on the head by some blunt
Curt East, one of the parties jointly indicted for the murder of Casey, swears that on the morning before the house was burned he was a.t the home of Bud Casey, having gone there with' Jones Simpson. Nath Taylor gave Jones Simpson a dollar to buy whisky with, and, upon his insisting, Curt East went to buy and did buy the whisky, and they took it to Bud Casey’s house. The whisky was distributed, and they all partook of it pretty freely. At 12 o’clock some discussion was had about getting dinner or something to eat. They all stayed around the house during the afternoon. Other persons came in at different times. About 3 o’clock Jones Simpson and witness went to the house, having been out in the yard or orchard engaged in some sort of game, and when they arrived there Casey had the door locked, and Jones, who had a stick in his hand, told Casey that if he did not open the door he would burst the door open. Casey finally unlocked the door, and the witness, Nath Taylor, and Jones Simpson went for some cider, but did not get any at that time. Casey was under the influence of liquor, and witness tried to get him away for some purpose. He started away, but lay down under a tree, and Jones Simpson,' went to him and brought him back to the house. About this time John Simpson, the appellant, came along and joined the crowd, and remained with them until 9 or 10 o’clock. Jones Simpson lost his hat. They all looked
Many other witnesses testified, but none of them mentioned the name of John Simpson, except Calvin Locker, Thompson Hill, and Prentice Walker. Calvin Locker said that he met John Simpson between 8 and 9 o’clock the morning after the fire, and John said that he left the house between 11 and 12 o’clock, and nobody was there except Nath Taylor, and Curt East. Thompson Hill said that, according to his remembrance of it, John Simpson testified before the coroner’s jury that he left the house between 8 and 9 o’clock. Prentice Walker testified that John Simpson said he was in jail for nothing, and that he told him (Walker) that he (John Simpson) knew something about' it. ■
The following errors are assigned: (1) The indictment against Curt East should have been dismissed before he was permitted to testify. (2) The admonition of the court to the witness East went further than the law permits, and witness East was not permitted to testify as. to any immunity or promises held out to
The question involved in the first error assigned has already been passed upon by this court in the case of Powers v. Com., 114 Ky. 237, 24 K. L. R. 1007, 70 S. W. 644, 1050, 71 S. W. 494, wherein the court held that the testimony of accomplices jointly indicted is competent, although the indictment against them be not dismissed. After the witness East had consented to testify, the court admonished him as follows: “And you don’t have to testify at all about anything that occurred down there if you don’t wish to. Not only that, but if you, in the course of the examination, come to any question that you don’t want to answer, you don’t have to answer it, and you will just signify to the court, and you will have full protection. Understand that, in the inception of the examination and at any time during your examination, if you don’t want to answer the questions, signify it to the court, and you will be protected.” Counsel for appellant then asked several questions in reference to the witness’ willingness to testify, and also in reference to whether or not he had been offered or expected immunity for testifying. To each of these questions the court sustained an objection, but counsel for appellant made no avowal as to what his answers would be. It appears, however, that the admonition of the court and the question thereupon asked, as referred to above, all took place without the jury being present. When the witness was placed upon the stand and began his testimony, he never once availed himself of the privilege offered by the court, but testified freely and fully. Upon the cross-examination witness was asked and aswered the following questions: “ Q. Did anybody ever make the sugges
The only other question remaining» to be decided is whether or not the testimony of the accomplice, East, is sufficiently corroborated. It is the contention of the Commonwealth that East is not an accomplice; but, taking his own version of the affair in connection with the statements if other witnesses who have testified, we have reached the conclusion that he is an accomplice, and that his testimony must be regarded as that of an accomplice. In view of the instructions given to the jury, the trial court evidently entertained the same opinion. We will proceed, first, to discuss what kind of corroboration.is necessary. Section 241 of the Criminal Code of Practice is as follows: "Conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.” In interpreting this section, this court, in Bowling v. Commonwealth, 79 Ky. 604,
The testimony of the accomplice, East, is corroborated as to several unimportant and immaterial matters; but the only corroboration of his testimony in reference to John Simpson is the admission, of Simpson to two witnesses that he was present at the house of Bud Casey on the night prior to the time it was burned, and his admission to another person that he knew something about it. The presence of John Simpson at the house of Bud Casey has no more tendency to connect John Simpson with the murder of Casey than did the sight of the man in company with a burglar have to convict him of burglary; and surely the statement that he knew something about it could not be deemed sufficient to connect him with the crime, for, if that were the case, every witness of a crime, if accused by an accomplice, would be in danger of having his testimony interpreted in the same way. It may be that upon a new trial additional facts will be
Judgment reversed, and cause remanded for new trial consistent with this opinion.