148 Ky. 60 | Ky. Ct. App. | 1912
Opinion of the Court by
Affirming.
The appellants, standing’ under a sentence of death imposed by a jury verdict and judgment in the Mason Circuit Court, appeal here. On Sunday, July 9th, 1911, the dead body of a negro man was found on the side of the sloping bank of a cut on the L. & N. Railroad track adjacent to the city limits of Maysville, Kentucky. The negro was a stranger in the community. No one in Maysville seems to have known him and, so far as the record discloses, no one there seems ever to have seen him prior to Friday, the 7th of July, immediately preceding the Sunday upon which his dead body was found. His identity was still not fixed at the time of the trial of the appellants, who were indicted for his murder.
The negro, sometimes spoken of in the record as
Indicted with the Smiths were the three women above named, Nannie Cooper, 'Essie Price and Hattie Dempsey, dissolute negr’o women of the town. Inasmuch as some question is made in the record about corroboration we have detailed at length the testimony of the foregoing witnesses, all independent of any testimony by the women. We now proceed to give their version of the matter.
Nannie Cooper testified that she, the Price woman and the two Smiths were berrying on reservoir hill on Friday morning; that she and the Price woman went down the street on Friday night and saw the Smiths and the man Ed at Williams Drug Store corner; that Hattie Dempsey came up; that Charles Smith “hunched” the witness and called Hattie “Belle;” that he called the witness “Luella” and the Price woman “Sarah Ella;” that it was there arranged that they should all go out for a good time; that the men left and got the case of beer, and that the men and women reconvened on the L. & N. out beyond the station; that they went on out the L. & N. track and finally stopped at the place where the killing was done; that there they sat around drinking and singing for a time; when the man Ed and Hattie went away together for some twenty minutes; that Charles remarked that “this son-of-a-bitch has $35 on him. * * * God damn it, we are going to have it, if we have to knock him in the head,” and that if they got the money they would take the women up into Virginia; that she, the witness, remonstrated with Charles; that Charles said that he had the club ready and that if the women made any disturbance when he hit the son-of-a-bitch he would murder them; that Jim Smith said that he was going to do the hitting himself; that Ed and Hattie returned, when Ed sat down upon the case of beer beside Jim at Jim’s invitation; that Charles Smith raised up behind Ed Avitli the club and struck him on the side of the head; that Ed fell, when Charles said: “Hit the son-of-a-bitch; he ain’t dead,” and that Jim struck him again on the head; that the witness then fainted; that the women went further up on the bank and Charles brought the beer case up next to them; that the remainder of the beer Avas divided out between them; that they said that they were going to put the dead man out of the Avay where he Avouldn’t be found for a day or two;
With the facts before us it is now our duty to search the record to ascertain whether any error prejudicial to the substantial rights of the parties was permitted during the trial. We will discuss the complaints in the order in which they are brought forward by appellants’ counsel.
It is first argued that the motion of the defendants for a change of venue was erroneously overruled. In support of their motion they filed a number of affidavits. They likewise put in the record several articles theretofore appearing in the Maysville press, calculated to excite the public temper against them. Upon the other hand, the record discloses an answering statement published in the same papers, prepared and signed by the attorney appointed by the court to defend these negroes, which vigorously assails the negro women witnesses above named, and which, no doubt, affected the public temper quite as much as did the unfavorable articles which it answered. In addition, it is to be remembered that the dead man was a total stranger in Maysville. No friend or kinsman ever appeared to aid the prosecution. Frequently some white influence, born of the past relation of master and servant, or of family ties come down from the days of slavery, appears in a case like this, and prosecutes, out of some affectionate memory for the decedent; but it was not present here. The dead man was a vagrant, unknown and friendless negro, whose manner of life the few short hours of which are exhibited to us, could have awakened no sympathy for
It is next argued for appellants that the evidence fails to show, beyond a reasonable doubt, the corpus delicti, which “means the fact that a crime has been committed by some one; and in murder has two components —death as the result, and the criminal agency of another as the means.” (Robinson’s Criminal Law, volume 1, page 187.) It is seriously argued that as the physician says the wound on the left side was sufficient to cause death “if it did not receive attention,” the death was caused, not by the wound, but as “the result of negligence in failing to give the injuries proper attention” — i. e., after the man’s skull had been crushed in, and he had been dragged into the weeds to die, his own negligence in failing to obtain surgical attention caused his death. The argument does not appeal to us. In addition, the Coroner said his head was “crushed
We come now to discuss the criminal agency of the appellants, whether there was sufficient evidence to take the case to the jury upon.the question of whether they committed the crime. In the first place it is to be remembered that that fact is likewise a fact which may be established by circumstantial evidence. Commonwealth v. Murphy, 109 S. W., 353; Flinchem v. Commonwealth, 89 S. W, 1129, and many other authorities. If we but let our minds revert again to the facts detailed by the witnesses, tracing the association of the condemned and the decedent almost to the place of the killing (all again independent of the eye witnesses to the actual killing) the finding of the handkerchief, the Enquirer, the Wiedeman beer case, the rifled purse, and the dead body there, we would pause long before we could convince ourselves that the condemned men’s guilt had not been clearly made out by these, in themselves, most convincing cir
There has been much written upon the subject of the corroboration of accomplices, a great part of which, because based rather upon the facts of each particular case, than upon any general principle, is profitless and without enlightenment. The doctrine grew up under the common law and has become the statutory demand of our Criminal Code. The rationale of it seems to have rested upon an inherent distrust of the testimony of one who, by testimony, might secure the conviction of another rather than himself, or who might be testifying under the lure of immunity commonly supposed to follow from “turning State’s evidence.” It was'a wise custom of the judges who, under the ancient practice, in summing up to the jury, were vested with the function of discussing the weight of the evidence, to remark upon the selfish, and, therefore, doubtful, nature of the testi
There remain only the instructions, of which complaint is made.
Instruction 7, given by the court, told the jury that unless they should believe from all the evidence, beyond a reasonable doubt, that the defendants had been proven guilty, they should find the one or ones as to whom the doubt existed not guilty. The appellants complain that this instruction warranted the jury in finding the defendants guilty upon the testimony of accom-. plices alone; and argue that it should have embraced, as a part of it, a reiteration of the necessity of evidence other than that of the supposed accomplices. It will be remembered that it was for the jury to say whether the three women were accomplices. And, conceding for the argument, that they were, the record discloses that by instruction No. 5 the jury were told, by an apt and proper instruction, -that they could not convict upon the testimony of the women alone, if they were accomplices, and were fully advised as to the nature, character and amount of corroborative testimony necessary to warrant a conviction. It is unnecessary to write the whole
Instruction No. 5, which outlined to the jury the necessity and nature of the corroborative circumstances, treated only of the three women as accomplices, and only told the jury that their testimony, if the jury believe them to be accomplices, would need to be corroborated. The appellants complain that it was error to have omitted from this instruction the name of James Smith as one of the accomplices whose testimony needed corroboration. It will further be remembered that in our view expressed above, the testimony admitted, down to the close of the Commonwealth’s testimony, not only was sufficient to take the case to the jury, but was sufficient to justify, if not to demand, a conviction. The position of the appellants then is, that notwithstanding the .fact that the Commonwealth had made out its complete case, they, the defendants, by introducing one of them in their own behalf, or, more properly speaking, by one of them taking the stand in his own behalf, could alter his position from that of a witness for the defense to that of a witness for the Commonwealth, and require the court, throughout its instructions, to treat him not otherwise than as a witness for the Commonwealth, and to require corroboration of his testimony not otherwise than as if he had been introduced for the Commonwealth, instead of voluntarily appearing for himself. We have commented upon the reason back of section 241 of the Criminal Code. The distrust attaching to a witness whom the Commonwealth might put upon the stand, arising from the witnesses’ supposed promise of immunity, does not apply and can not apply in favor of one accused, who is not called or used by the Commonwealth, but who appears of his own volition for the defense. The framers of the Code did not intend this provision, it seems clear to us, to be used as a shield by the defendants on trial, when themselves testifying for themselves. One very clear evidence that such was not the intent of the Code makers lies in the fact that when sections 241 and 242 of the Criminal Code were written, there was also written section 234, which provided that, where two or more persons were under indictment charging a conspiracy among them to commit a crime, they could not testify the one for the other. A conspiracy was charged in the indictment at bar. Under the law, therefore, as it
It is further argued that instruction No. 5 was erroneous, because it told the jury that in case they believed the women were accomplices, a conviction could not be had upon their testimony, unless corroborated by other evidence tending to connect “the defendants” with the commission of the offense. It is argued that it is reversible error, because the instruction did not run as to “the defendants or either of them.” But in instruction No. 3 we find that the jury were told that they might find either defendant guilty or not guilty; and again in No. 7 they were told that unless they believed that the defendants or either of them had been proven guilty, beyond a reasonable doubt, they should find the one or ones as to whom they had such doubt, not guilty. The-instructions as above set out are to be read together. When that course is followed it is clear that the law was given with substantial accuracy and in such apt language as that the defendants were not prejudiced. It is impossible for any one writer to use words which will escape criticism of those who-, like the appellants, are in extremis; but it is not the use of this precise word or that which determines whether an instruction is correct. It is, per contra, the ideas-, the law, embraced or expounded by the words. If, in a reasonably intelligible way to a reasonably intelligent mind, the court has given ■the whole law in a criminal trial, we will not reverse for narrow, technical or linguistic complaints. The objection must be real, not fanciful. It must be such as to have militated against a fair trial of the defendant. It must be such as to have prejudiced his substantial rights,'before we will reverse for it.
The affirmance of the judgment of the trial court is an unpleasant duty to us and one that we would gladly escape if it were in our -power. It is doubly hard that there should have entered into the trial, as a part of the testimony against these men, the evidence of the wanton and degraded women who testified. It is one of the mis
The judgment of the trial court is affirmed.