Ellis v. Commonwealth

• Decision Date: 13 February 1912
• Parties: ELLIS v. COMMONWEALTH. [d]
• Court: Kentucky Court of Appeals

143 S.W. 425

146 Ky. 715

ELLIS v. COMMONWEALTH. ^[d]

Court of Appeals of Kentucky.

February 13, 1912

Appeal from Circuit Court, Pulaski County.

James Ellis was convicted of murder, and appeals. Affirmed.

J. N Sharp, L. G. Campbell, Robt. Harding, and D. E. McQueary, for appellant.

James Garnett, Atty. Gen., Chas. H. Morris, Asst. Atty. Gen., O. H Waddle & Son, M. L. Jarvis, Commonwealth Atty., Morrow &amp Morrow, and Wesley & Brown, for the Commonwealth.

CARROLL J.

Under sentence of death by the judgment of the Pulaski circuit court, the appellant prosecutes this appeal, and asks a reversal for errors committed to his prejudice during the trial that resulted in his conviction.

The appellant and Fount. Helton were indicted by the grand jury of Pulaski county, at a special term of the circuit court held in July, 1911, for the murder of A. J. Beatty, and, when the case was called for trial at this special term, on motion of the defendants, the commonwealth was required to elect which one of them it would first try, and it elected to try appellant. Thereupon the appellant filed a motion and grounds for a continuance, and the case was continued until the regular September term of the court, when the trial was had and the judgment entered from which this appeal is prosecuted.

Before taking up the facts of the case and the errors that it is alleged were committed in the admission of evidence and in the instructions given to the jury, we will dispose of the preliminary question raised by counsel, that the motion to quash the indictment should have been sustained because the court had no jurisdiction to call the special term or to impanel a grand jury thereat or receive the indictment against appellant returned by this grand jury.

The order calling the special term at which the indictment was found conformed strictly to the provisions of the statute. It set out that, it appearing to the satisfaction of the judge that the business of the court required it, a special term was called to convene on July 28th, and further gave notice that: "A grand jury will be impaneled at said special term of said court for the investigation of violations of the criminal and penal laws of the state, and should said grand jury return indictments against James Ellis and Fount. Helton, or either of them, upon the charge of shooting and killing A. J. Beatty and W. F. Heath, or either of them, said prosecutions will stand for trial, and motions, orders, and judgments may be made and entered in either or both of said cases."

Upon this record it will be conclusively presumed that there was a necessity for calling the special term, and this order gave the court at the special term full jurisdiction to take any action that could be taken at a regular term of the court in reference to the indictment and trial of violators of the penal and criminal laws of the commonwealth, and therefore the court correctly overruled the motion of counsel for appellant to quash the indictment. Banks v. Commonwealth, 145 Ky. 800, 141 S.W. 380; Penman v. Commonwealth, 141 Ky. 660, 133 S.W. 540.

Another error assigned is that the court disregarded the substantial rights of appellant in discharging four jurors. It arises in this way: At the September term, when the case was called for trial, all the jurors composing the regular panel were excused except four, who were tentatively accepted by both parties but not finally by either. After the regular panel had been exhausted, with this result, the court, under the authority conferred by section 194 of the Criminal Code, ordered the sheriff to summon 100 qualified jurors from the adjoining county of Lincoln, and after this order was made the judge on his own motion and over the objection of counsel for appellant discharged the four Pulaski county jurors that had been conditionally accepted. It is evident that the court was influenced to take this action because he believed a fairer trial could be secured for both the commonwealth and the accused if all the jurors were selected from an adjoining county; and there is no suggestion in the record that the rights of appellant were in any manner prejudiced by this ruling of the court, to which only a formal objection was made. But if this were not so, we would nevertheless be precluded from reviewing the ruling of the court by section 281 of the Criminal Code, providing that: "The decisions of the court upon challenges to the panel, and for cause, or upon motion to set aside an indictment, shall not be subject to exception."

Construing this section of the Code in many cases, we have ruled that error--if there be one--in the manner of obtaining or selecting a panel is not available in this court, as the decision of the trial court on questions relating to the impaneling of jurors is not subject to exception. Howard v. Commonwealth, 118 Ky. 1, 80 S.W. 211, 22 Ky. Law Rep. 2213, 81 S.W. 704, 26 Ky. Law Rep. 363. It must be admitted that this section and the construction given to it places great and unrestrained power in the hands of the trial judge in the selection of a jury; but it is not to be assumed that a judge will exercise it in an arbitrary or unjust manner, or so abuse his office or discretion as to knowingly or purposely deny either to the commonwealth or the accused the right to select a jury in the mode pointed out in the Code and statutes. But, however this may be, it is certain that in this case the trial judge did nothing to affect either the rights of appellant or the commonwealth.

Coming now to the facts of the case, they may be stated as follows: A. J. Beatty was a justice of the peace in the magisterial district of Pulaski county embracing the town of Burnside, in which the homicide took place, and W. F. Heath was the constable in that district. The appellant, Ellis, was a deputy sheriff of Pulaski county, and his co-defendant, Fount. Helton, had been appointed a deputy constable for the district. So that all of the parties were officers of the law, and the evidence shows that both Esquire Beatty and Constable Heath were vigilant and faithful in the discharge of all of their official duties, and especially earnest and efficient in their efforts to suppress the unlawful sale of intoxicating liquors in that district. The appellant for some time previous to the homicide had been engaged in operating what is called a "soft drink" establishment, and a number of warrants had been issued against him by Esquire Beatty for violations of the liquor laws. Some of these warrants had been placed in the hands of Fount. Helton for execution, and it appears that on the day of the homicide, Helton, acting in the capacity of deputy constable, in company with the appellant, came to Burnside, where Esquire Beatty lived and had his office, for the purpose of permitting appellant to execute bonds for his appearance to answer at a trial under these warrants. The shooting that resulted in the death of Esquire Beatty and Heath occurred about 5 o'clock in the afternoon, and appellant and Helton had been in Burnside for several hours previous to that time. Some time before 5 o'clock they both became under the influence of liquor, and at some place in the town acted in such a disorderly manner that a citizen at once applied to Esquire Beatty for a warrant for their arrest, of which fact both appellant and Helton had notice before they went to the office of Esquire Beatty, which was in a large room upstairs over a store. When appellant and Helton, both of whom were armed with pistols and either drinking or drunk, went upstairs to the office, they found there no persons except Esquire Beatty and Heath, both of whom it appears were seated in the room when Helton and appellant went in. It is shown that, in addition to the warrants of arrest that Helton had for appellant, Esquire Beatty had prepared and there was on his table several other warrants against appellant for violations of the liquor laws as well as violations of the gaming laws, and also a warrant for his arrest on the charge of disorderly conduct in the town of Burnside that afternoon. Appellant and Helton had only been in the office a few minutes when the shooting commenced, and, as no persons except the four men were present, there is no testimony as to what occurred immediately before the firing began, except the evidence of appellant, as Helton was not introduced as a witness. But there was a brief interval between some of the shots, and, before the shooting was entirely over, some persons who were convenient saw a part of what happened through windows in the room. Without relating further at this place the details of the tragedy, it may be said that, when the shooting was over, Heath was found lying dead in the room with five shots in his body and Esquire Beatty so desperately wounded by a like number of shots that he died in a few minutes.

The appellant in his testimony said, in substance, that, when he and Helton went into the room, they found Esquire Beatty and Constable Heath both seated at a table, Esquire Beatty being busy writing or handling some papers about his typewriter which was near him on the table; that he asked Esquire Beatty if he was ready to recognize him on the warrants that had been delivered to Helton for his arrest, and, before Esquire Beatty had time to answer, Heath arose up out of his chair and said, "I have a warrant for you," and immediately drew his pistol, when Helton, who was standing close to him, grabbed it, and at once the shooting commenced. He admitted that he fired several shots at Heath, but denied that he fired any shots at Esquire Beatty, or that any shots fired by him struck Esquire Beatty, and if they did it was not intentional on his part, as he had no grievance against Esquire...