194 Ky. 608 | Ky. Ct. App. | 1922
Opinion op the Court by
Affirming.
A short time after sundown, and before it became dark, on tbe evening of August 10, 1921, tbe appellant, Kye Terrell, iu Perry county near tbe mining camp of tbe Blue Diamond Mines, shot and killed Lee Combs, a yontb nineteen and one-balf years of age. He was afterwards indicted for tbe homicide by tbe grand jury of tbe county in which be was charged with the crime.
The first, and indeed, according to our view, the only one possessing even the semblance of merit, is that" the indictment was not indorsed and signed as required by section 119 of the Criminal Code of Practice, which says: ‘ ‘ The concurrence of twelve (but now under the Constitution, section 248, nine) grand jurors is required to find an indictment; when so found, it must be endorsed ‘a true bill,’ and the indorsement signed by the foreman.” Upon the back of the indictment there was signed the name, “Gf. W. Eversole,” and immediately thereunder, and slightly to the right, was the indorsement “a true bill. ’ ’ The order of the court filing it recites that it was received from the hands of the foreman in the presence of the grand jury and filed in open court and that the grand jury, after answering to the call of their names, “through their foreman reported an indictment against Kye Terrell, charging him with the crime of wilful murder, said indictment was endorsed, a true bill, by the foreman of the grand jury, and was handed by the foreman of the grand jury in the presence of the grand jury to the clerk of this court, who marked same filed as the law directs.” The purpose of the requirement, that the ..indictment shall be indorsed “a true bill” and that it shall be signed or certified as such by the foreman of the grand jury, is to unerringly identify the indictment and to evidence the fact that it was concurred in by the grand jury in the manner required by law, and such indorsement constitutes the only competent evidence that the paper filed is an indictment legally found. Oliver v. Commonwealth, 95 Ky. 372; Pence v. Commonwealth, idem 618, and Patterson v. Commonwealth, 86 Ky. 313, also reported in 99 Ky. 610. Those cases, as well as those of Commonwealth v. L. & N. R. R. Co., 17 Ky. L. R. 562 (two cases), and same v. same, idem 563, hold that the code requirements as to the indorsement and signature of the foreman are mandatory, and the opinion in the Pence case holds that when the order of court recites a compliance with the section of the code it will be sufficient evidence of that fact unless the record af
At common law and in the absence of a statute prescribing a requirement to the contrary, the “signing” of any writing which the law required to be so evidenced need not be at the end, bottom or close of the paper, but the signature to be effective may be placed either at the bottom, top, middle, side or margin of the paper by the one whose duty it was to sign it and if so written with the intention that the written name should perform the legal requirement of a signature the writing would be deemed as legally and properly signed. In other words, at common law the precise place on the writing where the signature was made was neither material nor essential. In 25 A. & E. Ency. of Law, second edition, page 1065, the text upon this subject says: “Although the words ‘sign’ and ‘signature’ sometimes import a signature at the bottom of the instrument, yet in neither ordinary nor legal use are they confined to the writing of the name at the bottom of a paper. An instrument is signed where the name appears at the bottom,
Some of the cases supporting the statements of the text are: Auzerais v. Naglee, 74 Cal. 60; California Canneries Co. v. Scatena, 117 Cal. 447; Wise v. Ray, 3 Green (Iowa) 430; Drury v. Young, 58 Md. 546, 42 Am. Rep. 443; Davis v. Shields, 26 Wend. (N. Y) 341; Adams v. Field, 21 Vt. 256; Tingley v. Bellingham Bay Boom Co., 644; Sarah Miles’ Will, 4 Dana 1; Allen v. Everett, 12 B. Mon. 378, and Soward v. Soward, 1 Duvall, 126. Those cases deal with questions growing out of the proper execution of contracts required by the statute of frauds to be in writing and “signed by the party charged,” and questions involving the proper execution of wills under statutes requiring them to be signed by the testator. The original English Statutes, upon those two subjects, used the word “signed”-when referring to the execution of the writing, and the English courts, as will be seen from the cases, supra, held that in as much as there was no statutory requirement as to the place on the writing where the signature should appear, it was competent under the common law rule for it to appear anywhere thereon or therein if written with obligatory intention. Many of the earlier statutes of the states were phrased similarly to the English -statutes and were given the same construction. Thus, in the cited Vermont case- of Adams v. Field (which was a will case, and the name of the testator appeared at the- beginning or in the body of the will, as was also true in the first two Kentucky cases cited above), the court said: “The etymology of the word ‘sign’ does not necessarily require the signing to be at the bottom of the instrument; and it is much a matter of taste, as to the place of signing. ’ ’ The other cases cited announce the same rule in substance, and the New York case of Davis v. Shields, as well as the Soward case, supra, from this court, points out the etymological distinction between “signing” and “subscribing” a writing, the latter meaning a signature at the end or bottom thereof. Hence, the court in both of the two latter cases held that the signature must be at the end or bottom of ■the writing involved, because there had been a change in the requirement of the prevailing statute by substituting the word “subscribed” for the word “signed.” Moreover, if such was not the- common law rule with reference to the signing of a writing there could have been no . purpose in the enactment of section 468, supra, for if
We, therefore, conclude that, unless tbe “signing” by tbe foreman of tbe grand jury of tbe required indorsement, “a true bill,” is included' in, and to be governed by, the provisions of section 468 of tbe statute the signing by the foreman need not be under tbe indorsement but it is sufficient if it is placed in such juxtaposition thereto as to clearly indicate that it was tbe intention of tbe foreman to comply with tbe code requirements in writing bis name thereon. Tbe rule is so stated in tbe text of 22 Cyc. 255-256, and it was so held by tbe court in the cases of State v. Bowman, 103 Ind. 69, 2 N. E. 289, and State v. Hogan, 31 Mo. 340; the text of tbe work referred to, which is supported by tbe cases cited, says: “But a variance from these words (tbe required indorsement and tbe signature of tbe foreman) will not be fatal, if they are followed in substance, and it is immaterial, in tbe absence of express provisions in tbe statute, on what part of tbe indictment tbe indorsement or tbe signature (of tbe foreman) appears, or that the signature does not immediately follow tbe indorsement.’'’ In the case of Commonwealth v. Ripperdon, Littell’s Select cases (16 Ky) 194, it is said: “It is, therefore, a general rule, whenever a statute provides that a thing shall be done-, without prescribing tbe mode of doing it, that it shall be done according to tbe common law mode. ’ ’ Since, therefore, tbe foreman’s signature in this case was sufficient, unless controlled by tbe section of tbe statute, supra, it becomes necessary to determine its effect, if any, upon that question.
It will be observed that tbe writing therein referred to is one which is required “to be signed by a party thereto.” This carries with it tbe irresistible inference that tbe writing therein mentioned was such as required “parties” to execute it and which conferred rights and imposed obligations upon those who did execute it, or for or on whose- behalf it was executed and includes only such writings as are contractual ¡or quasi contractual in their nature and to which there must necessarily be parties. Tbe foreman of tbe grand jury is not such a party to an indictment or to tbe required indorsement on it. His signature, as we have seen, is only for tbe purpose of evidencing tbe legality of tbe finding of tbe indictment and to verify, to tbe defendant and tbe court, tbe fact that the particular paper contains tbe accusation
But, it is insisted that the name, “G. W. Eversole,” as signed by him, was not followed by the word, “foreman,” and for that reason it is insufficient. The section of the code, supra, does not in terms or by implication require that the word, “foreman,” shall follow or be attached to the name of the grand juror who signs the indorsement. It only requires that such person shall be foreman of the grand jury; and in the absence of an affirmative showing to the contrary it will be presumed that the member of the grand jury whose name appears was its foreman. In the volume of Cyc., supra, on pages 256-257, it is stated that, “The indorsement and signature are not insufficient because the word ‘foreman’ after ihe signature is not followed by the words ‘ of the grand jury,’ or because it is misspelled, or even because it is omitted altogether, for the records may be examined to ascertain who was foreman.” To the last statement in the quotation there is appended the cases of State v. Bowman, supra; Beard v. State, 57 Ind. 8; State v. Soapher, 35 La. Ann. 975; Com. v. Read, Thach. Cr. Cas. (Mass.) 180; State v. Chandler, 9 N. C. 439; Whiting v. State, 48 Ohio St. 220, 27 N. E. 96; Com. v. Ferguson, 8 Pa. Dist. 120; State v. Brown, 31 Vt. 602. Instead of it affirmatively appearing in this case that G. W. Ever-sole was not the foreman of the grand jury, it affirmatively appears from the order hereinbefore recited, that he was its foreman and this ground must also be determined as without merit. We, therefore, come to a consideration of the other errors complained of, which being immaterial, as heretofore indicated, will be briefly disposed of.
It will be necessary for that purpose to first make a brief statement of the facts as shown by the record. Defendant was, and had been for a month or more, a deputy sheriff of Perry county and was assigned to the Blue Diamond Mines as a place for the performance of his duties. He conceived the idea that moonshine whiskey
“It was reported that there were some bootleggers coming in that evening, and I went up there and asked Johnnie Combs to go with me to help put the whiskey out, and he did so, and we went up there and this boy came along, and I asked Johnnie what to do about it, and he said — and I said ‘will we stop him’ and he said ‘it will be all right to stop him’ and I walked down, I could not say more than 10 or 15 feet from the county road; and I walked down to the edge of the road, and told him to halt, I saw the jugs in the saddle bags, and I called him to halt; I was just ready to lay my hand up on the saddle bags, and he spurred his mule and started running off, and I shot. I won’t say that I hit the boy, nor that I didn’t.”
The pistol was a 38 caliber and what is known as an automatic special. But one shot struck the deceased and it was in the back two or three inches from the spinal column in the region of the kidneys, just over the hip. He lived something over thirty-six hours, and stated that the first shot struck him and that when defendant spoke to him he became frightened. He fell from the mule at a distance of about thirty feet from where defendant was standing when he did the shooting. The other deputy, Johnny Combs, in stating how the shooting occurred, said that defendant halted the deceased, “and I saw bim throw his head back that way, and the mule started down
Upon the evidence, as thus briefly outlined, the court instructed the jury on murder, and voluntary manslaughter, and gave the usual reasonable doubt instruction as to the defendant’s guilt as well as to the degree of the offense committed, if any, and there was likewise an instruction on self-defense of both appellant and Johnny Combs, the other deputy sheriff who was with him. There was also an instruction defining the rights of the appellant in attempting to make the arrest, if the jury believed that he saw the jugs of moonshine whiskey in the saddle bags and that defendant believed and had reasonable grounds to believe that they contained intoxicating liquor, in which case, as the instruction said, “said defendant had the right to'use such force as was reasonably necessary therefor, if the arrest was forcibly resisted, even to the taking of the life of the deceased, Lee Combs, but- he had not the right to use unnecessary force or violence or to shoot or otherwise injure the deceased unless the deceased forcibly resisted the arrest. ’ ’ The quoted portion of the instruction is more favorable to defendant than he was entitled to under the law, since the offense, though committed in his presence, was only a misdemeanor and there was no evidence of any forcible resistance by deceased and defendant had no right, in order to effect the arrest, to inflict death or bodily harm. The case would be different if the arrest had been made and the deceased was forcibly trying to escape, or was forcibly resisting the arrest, assuming defendant’s right to make it. These principles of the law have been so often reiterated by this court as not to require the citation of cases.'
The only remaining complaints are that the court erred in admitting and rejecting testimony. The re-, jected testimony was that the court refused, on cross-examination, to permit Johnny Combs to state whether, since he had been deputy sheriff, “different persons had not brought whiskey into this camp” and sold and distributed it. We do not regard the testimony as relevant, but if otherwise the witness stated the same in substance in his examination in chief, and the defendant also testified to the same fact. The alleged improper testimony complained of was that given by the- father of deceased,
It is also insisted that no malice is shown; hut that was a question for the jury to determine under the facts and circumstances in the ease. Malice aforethought, necessary to constitute murder, has been frequently held by this court as meaning “a predetermination to do the act of killing without legal excuse, and it is immaterial how suddenly or recently before the killing such determination was formed.” The jury may look to all the facts and circumstances in arriving at its finding as to the existence of that necessary element to constitute murder, and under the apparently cold blooded method by which the deceased in this case lost his life, we are not prepared to say that the jury’s verdict finds no support in the record.
Upon the whole case, we find no error prejudical to the substantial rights of .the defendant, and the judgment is affirmed.