196 S.W.2d 465 | Ky. Ct. App. | 1946
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *58 Affirming.
The judgment of conviction of assault and battery imposes a sentence of imprisonment in jail for four years and a fine of $5,000. A reversal is sought on the grounds (1) the admission of incompetent evidence; (2) excessive and unconstitutional punishment; and (3) improper argument of the Commonwealth's Attorney.
According to the evidence for the Commonwealth, during the evening of September 26, 1945, the defendant, John H. Weber, accosted R. Davis McAfee while he was adjusting his clothing in the toilet room of a roadhouse, known as Kenwood Inn, with the inquiry, "Do you recognize me?" to which he replied, "I don't believe I do. My name is McAfee." The defendant responded, "I am Johnny Weber. You plastered my name all over the newspaper," and, as McAfee testified, "with that it was like a blinding flash of light in every direction. I don't know what happened except that I was knocked out. You might say I was partially conscious. I have a hazy recollection of feeling like trying to reach up on things and catching hold of the wall, and the next thing I was lying *59 on the floor being kicked in the face. I never knew how many places I was struck. I regained enough consciousness to call for help, and the next thing I knew, the proprietor, or whom I learned since was the proprietor of the place, helped me up."
McAfee's jaw was fractured; his nose broken; his teeth displaced; one eye was badly bruised, became much swollen and protruded from the socket, and was permanently injured. He also suffered body bruises. He spent nine days in a hospital and was confined to his home for two weeks longer. It was sometime before he was able to resume his normal activities.
According to the defendant's evidence he had known McAfee four or five years. When he became a candidate for office in the previous primary election, McAfee had solicited his support and Weber had refused to give it. On this occasion he addressed McAfee, "Hello Dave," and began to joke him about his defeat. Whereupon, McAfee responded, "I don't like your attitude," to which he replied, "That is all right with me; I don't like yours." Following further expressions of mutual dislike, McAfee "struck at me, and hit Weber "just slightly." Then, he testified, "We had a good fight." He denied knocking McAfee down or kicking him. The defendant was proved to have a bad reputation for veracity and morality, and witnesses introduced to sustain the defense were discredited by their own testimony and that of others.
The victim of the assault is a practicing attorney in Louisville. The defendant frankly responded to the inquiry as to his present occupation, "I am a gambler." Upon cross-examination he elaborated his activities. It seems he specialized in handbook operations and race track gambling. The character or characteristics of the two men are revealed in the evidence which the appellant contends was erroneously admitted and its background. On July 17, 1945, during his candidacy for nomination as Commonwealth's Attorney, McAfee had made a speech over a local radio in which he criticised what he deemed to be the lax enforcement of the criminal laws in Louisville. In the course of that speech he referred to the defendant Weber in vigorous terms as a criminal who had escaped punishment over a long period of time. He read a list of 25 offenses, with the dates, for which *60 Weber had been arrested. They included charges of murder; rape of girls under the age of consent (two); malicious shooting and wounding; store house breaking (two); grand larceny (two); conversion; setting up and operating gambling games (three); violating the narcotic law; operating an automobile without owner's consent; selling intoxicating liquor without a license (three); destroying private property, and assault and battery (six charges). In addition McAfee stated that Weber had been arrested many times for breach of the peace and disorderly conduct. The speaker said he would not say that Weber was guilty every time he was arrested but that he had received little or no punishment for any of these offenses and had come to believe himself to be above the law. There was much other language of like import. The speech had been reduced to writing and the part relating to Weber was read to the jury. It was also stated that it had been published in the Courier Journal and was the subject of an editorial in that newspaper.
The defendant vigorously objected to the reference to this speech in the opening statement of the Commonwealth's Attorney and to its introduction in evidence. The court clearly and explicitly admonished the jury as follows: "Let me say to you again, ladies and gentlemen, that ordinarily this evidence would be incompetent, especially the truth or falsity or correctness of anything Mr. McAfee may have said, or anything that may have been published as a speech, or the alleged speech — all of that would ordinarily be incompetent. You have no right to consider that, or to let that prejudice you against the defendant for any purpose whatsoever concerning any charge made against him, whether it was made against him or not. I am only allowing you to hear that evidence on account of the alleged remark that he is said to have made on the occasion of this assault for the purpose of illustrating, if you do believe it does illustrate, beyond a reasonable doubt, any motive he may have had for this alleged assault. You may consider it for that purpose, and for none other whatever."
Of necessity it must be presumed that the jury, in recognition of their oath to try the defendant according to the law and the evidence, obeyed the admonition as *61
to the purpose and effect of the testimony. Huddleston v. Commonwealth,
The appellant, of course, recognizes the elementary rule that evidence pertaining to the commission of other offenses than that for which the accused is being tried is admissible for certain purposes, including that of showing motive. But he maintains that it is only where it is necessary to prove motive that the rule applies, and that such other offenses must be connected with the commission of the crime charged. It is pressed with much earnestness that this evidence was within those exceptions and limitations, for the fight was conceded and the offenses referred to in the statement had no connection with it, and its admission was prejudicial error. We can readily agree with the statement of law (Roberson, Ky. Criminal Law, Sec. 1805), but we cannot agree with its application. The cases specially relied on are different. In Raymond v. Commonwealth,
The defendant testified that he had no animosity against McAfee. He first testified that he did not know of his accusations and had not read anything in the newspapers about them, as he left about the middle of May, *63 two days after the racing season closed, and went to Detroit where he remained until the latter part of August. However, on cross-examination he contradicted himself, saying that he had returned to Louisville a few days before the election, which was held on August 4th, and also that he had been told by a number of people, including his mother, about his name having been mentioned over the radio by McAfee and published in the newspaper. He further added that the publicity did not hurt him because one "gets numb to anything" if he gets hurt so much, and that he considered the source as being that of a politician, and insisted that his fight with McAfee was not the result of it.
Quite naturally the appellant thinks the punishment meted out to him is excessive. The penalty, as we have said, is imprisonment in jail for four years and the payment of a fine of $5,000. It is claimed in brief that the defendant is not able to pay the fine and if compelled to serve it out be will be confined more than seventeen years. The force of the argument is lost by the fact that its payment has been secured by a supersedeas bond.
The appellant invokes the interdictions of the Federal and State Constitutions. The Eighth Amendment declares that "cruel and unusual punishments" shall not be inflicted. Section 17 of the Constitution of Kentucky declares that neither "excessive fines" shall be imposed, "nor cruel punishment inflicted." These restraints upon the powers of government find sanction in native justice. It is a right secured by Magna Charta and found in all state constitutions. The provision is generally regarded as directed to both the legislature and the judiciary. That in the Federal Constitution is confined in its operation to the Congress and the courts of the United States. 24 C.J.S., Criminal Law, sec. 1978. It is regarded as primarily relating to the kind and character or method of punishment, referring to inhumane or barbarous treatment or punishment unknown to the common law or which has become obsolete with the progress of humanitarianism, rather than to the severity in the amount or duration. But it would seem that most of the courts hold it covers that too. 15 Am. Jur., Criminal Law, Secs. 523, 535; 24 C.J.S., Criminal Law, sec. 1978, subsec. b; Cooley, Const. Lim., page 694. In the leading case of Weems v. United States, 217 U. *64
S. 349,
This court has held the provision in our constitution as applicable both to legislative and judicial action. But we have never held an act of the legislature in conflict although the penalties were quite severe in relation to public injury or individual harm. Illustrative acts are those which fix the minimum penalty for assault with an offensive weapon with intent to rob at 21 years imprisonment and the maximum at death (Ky. Rev. Stat.
In reference to the action of the courts and the trial of common-law offenses in which the punishment is not prescribed, by statute but left to the discretion of the jury to fix at a fine in any sum of money or imprisonment in jail for any length of time, either or both, we hold that a jury may not act arbitrarily but must be controlled by the nature and the enormity of the offense, hence that *65
excessive verdicts, apparently given under the influence of passion or prejudice, will be set aside. Bottom v. Commonwealth,
Our leading case on assault and battery is Cornelison v. Commonwealth,
The judgment of three years imprisonment in jail and a fine of one cent was affirmed as not being disproportionate to the enormity of the aggravated assault.
The instant case presents all the evil elements of that case: of malice, brutality, cowardly and sudden assault upon a defenseless man and humiliation of the victim. And more. Had Judge Reid been guilty of the conduct Cornelison believed he had, there would have been provocation and mitigation. But there was no mistaken belief here and no degree of mitigation. There was not only legal malice but actual malevolence. There was the vicious motive of revenge against one who had dared to speak publicly of what he deemed to be lax law enforcement against a man with a long record of arrests. Motive, as we have said, is an essential fact and we have held it may be considered by the jury in fixing the punishment. Urban v. Commonwealth,
It is usually said that assault and battery is a lesser degree of an assault with intent to rob (KRS
The true purpose of punishing one for a violation of the laws against crime is not for the benefit of the person injured, but to protect the public and with the view of preventing further crime. Frazier v. Commonwealth,
The third ground submitted for a reversal of the judgment, that the Commonwealth's Attorney, the Honorable Frank A. Ropke, made prejudicial statements in his closing argument, may be disposed of quite summarily under the rule that the bill of exceptions does not show that he did so. The bill merely sets forth the defendant's motion for a new trial and affidavits filed in *68
support thereof, which are to the effect that the attorney had made certain remarks concerning the radio speech which were outside of the court's admonition as to the purpose of its admission, and counter-affidavits in denial. The Judge did not certify that the remarks were made. We have held that a bill of this form does no more than show the documents were filed and their contents, and does not constitute a record of what occurred otherwise. Cannon v. Commonwealth,
Perceiving no error prejudicial to the substantial rights of the appellant, the judgment is affirmed.
Dissenting Opinion
I cannot agree with the majority opinion that the radio speech made by Mr. McAfee was admissible in evidence to show motive on appellant's part or that he was the aggressor in the affray. It is admitted by the majority that these other crimes with which Mr. McAfee said appellant had been charged and had escaped punishment had no connection with the offense for which he was then on trial.
It is almost puerile to say that this highly inflammatory evidence was admitted in its entirety for the purpose of showing motive or that Weber was the aggressor. Had that been the reason, the trial judge so easily could have admitted the bare fact that Mr. McAfee had attacked appellant in a political speech without reading to the jury all twenty-five crimes with which Weber had been charged, which ran the gamut of practically all the vicious and heinous offenses known to the law — from assault and battery through rape to murder.
This evidence in all its details could have been offered by the Commonwealth only for one purpose, and that was to so inflame the jury as to prevent the accused from receiving a fair and impartial trial. How effective was this evidence is eloquently reflected in the verdict fixing a fine of $5,000 and four years confinement in jail. While I cannot say such punishment runs afoul of sec. 17 of our Constitution as being excessive or cruel, I do say it was ample.
I feel that the majority is too optimistic when they *69 say that it must be presumed that the jury obeyed the admonition of the court not to let this evidence prejudice them against Weber. It could not have done otherwise than to have prejudiced the jury, as the severity of the punishment inflicted shows. No admonition could have removed the poison this evidence implanted in the minds of the jury, any more than "All the king's horses and all the king's men couldn't put Humpty Dumpty together again."
As is stated by the majority, intent may be presumed where there is evidence of an aggravated assault. Since this was certainly an aggravated assault, it was entirely unnecessary to prove motive or that Weber was the aggressor. In Brashear v. Com.,
The law says that an accused is entitled to a fair trial regardless of what his character or reputation may be. To my mind this evidence was not only erroneously admitted, but was so prejudicial as to preclude appellant from having the character of trial the law guarantees him.