Elliott v. Commonwealth

Citation161 S.W.2d 633,290 Ky. 502
PartiesELLIOTT v. COMMONWEALTH.
Decision Date19 December 1941
CourtCourt of Appeals of Kentucky

Rehearing Denied May 29, 1942.

Appeal from Circuit Court, Whitley County; Flem D. Sampson, Judge.

William Elliot was convicted of murder, and he appeals.

Affirmed.

Zeb A Stewart and R. C. Browning, both of Corbin, for appellant.

Hubert Meredith, Atty. Gen., W. Owen Keller, Asst. Atty. Gen., and J. B. Johnson, of Williamsburg, for appellee.

THOMAS Justice.

On a day in October, 1940, the appellant, William Elliott, then about twenty-one years of age, shot and killed Joe Tuggle in the jail of Whitley County. The grand jury of the county later indicted him for murder, the indictment containing counts charging appellant with having previously been convicted of felonies. At the trial of the indictment appellant was convicted of murder and punished by infliction of the death penalty. His motion for a new trial was overruled and from that order, and the judgment pronounced on the verdict, he prosecutes this appeal, urging by his counsel in their brief (1) that the indictment was bad for duplicity in that it charged that defendant had committed two distinct offenses; (2) there was no evidence to authorize a verdict finding defendant guilty of murder, but at most the jury could find him guilty of only voluntary manslaughter; (3) failure of the court to give the whole law of the case to the jury in its instructions; (4) error in refusing competent evidence offered by defendant, and (5) misconduct of the Commonwealth's Attorney in questions asked tendered jurors on their voir dire examination. They will be determined in the order named.

1. The argument in support of ground (1) is that the charge in the indictment accusing defendant of having been convicted of prior felonies is one offense, and that the homicide count contained therein is the preferring of another offense hence, the duplicity in the indictment contended for. The question thus raised was disposed of by us in the very recent case of Smiddy v. Commonwealth, 287 Ky. 276, 152 S.W.2d 949, adversely to instant counsels' contention. It was therein pointed out (and which the statute permitting habitual prior criminal convictions to increase the punishment expressly prescribes) that the only purpose to be served by incorporating such former convictions is to increase the punishment, when, as a degree of the offense charged in the indictment, the defendant might be convicted of a lower offense not subject to the death penalty, or life imprisonment, and that an indictment containing such charges of former convictions was not intended to accuse the defendant with having committed another independent offense, but was only intended to accomplish the purpose we have indicated. Indeed, the indictment in this case named but one offense--which was "murder"--with a subjoined description as to how it was committed. In this case, as pointed out in the Smiddy case, the jury may have concluded that defendant was guilty of only voluntary manslaughter, in which case the charged former convictions would authorize a verdict of life imprisonment, although the highest penalty fixed for that offense is such confinement for twenty-one years. There is, therefore, no support in the law for this ground, even if it had been properly raised by a demurrer to the indictment, which was not done, and we are compelled to declare it as being without merit.

2. A consideration of ground (2) requires a brief statement of the facts. Defendant was confined in the Whitley county jail after being convicted of one of the felonies charged in the indictment.

The deceased was a Turnkey or Deputy Jailer. A friend of defendant called to see him and he was let out in a small lobby in front of the cell chamber while his friend was conversing with him. A number of other persons by the name of Reynolds were present in the same compartment, having gone there to visit one of their relatives who was likewise confined in jail. When each of the visiting persons had finished their mission, a signal was given for the jailer to let them out and to put the prisoners back in their cells. When the deceased responded to that call he was in his shirt sleeves with his pistol in a scabbard by his side, but turned slightly to the rear. After entering through the jail door he shut it, and was engaged in locking it until he put the prisoners back in their cells, when defendant snatched the pistol from his scabbard and demanded exit. The jailer started to regain possession of his pistol when defendant shot him in the abdomen which proved to be the fatal wound, although another shot was fired after the infliction of the fatal wound and the officer was on the floor, but it was only a flesh wound and a non-fatal one. Not only is the described manner in which the homicide was committed established by a number of the other visitors to the jail, who were immediately present, but likewise by a dying declaration made by the deceased--who survived his fatal wound eight days--but it is also admitted by defendant himself. Even counsel in their brief say: "The evidence relating to the (manner of the) shooting of Tuggle by Elliott" is not materially disputed.

Counsel then recite the facts substantially as we have done supra. But it is argued that there is no proof of malice or premeditation, so as to make the homicide wilful murder. Counsel, however, overlooks the fact that malice or premeditation may be instantly formed in the mind of the perpetrator of a homicide. Also, that where an officer is killed in the discharge of his duty "it is not necessary to constitute the crime of murder that the slayer should have had any particular malice;" provided, of course, that the slaying was not done by the accused in defending himself from an act of the officer in excess of his powers and authority as such. Among the many cases substantially sustaining the proposition we have stated are Mockabee v Commonwealth, 78 Ky. 380; Donehy & Prather v. Commonwealth, ...

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