Allen v. Commonwealth

Citation134 Ky. 110
PartiesAllen v. Commonwealth
Decision Date27 May 1909
CourtKentucky Court of Appeals

Appeal from Breathitt Circuit Court.

J. P. ADAMS, Circuit Judge.

Defendant convicted of murder and appeals. — Reversed.

A. H. PATTON and J. J. C. BACH for appellant.

JAMES BREATHITT, Attorney General, TOM. B. McGREGOR, Assistant Attorney General, Attorneys for Commonwealth.

OPINION OF THE COURT BY JUDGE HOBSON — Reversing.

Amelia Allen and her husband, Theodore Allen, were jointly indicted in the Breathitt circuit court for the murder of Fanny Tutt; it being charged in the indictment that Amelia Allen shot Mrs. Tutt, and that her husband was present aiding, counseling, and inciting her to do the shooting. The indictment was found on February 15, 1909. The defendants were arraigned for trial on February 19th. They demanded a separate trial, and the commonwealth elected to try the wife first. Thereupon she filed an affidavit for a continuance. The court overruled her motion to continue the case, and a jury having been impaneled a trial was had resulting in her being found guilty of murder, and her punishment fixed at confinement in the penitentiary for life. Her motion for a new trial having been overruled she appeals.

The affidavit for a continuance showed that the defendants had been in jail from the time of the killing, which occurred on November 21, 1908, and that they had been unable to employ counsel until the day before the trial, when they had employed A. H. Patten. They were strangers in the county, and the only person to whom they could look for help was a brother of the husband who lived in Clay county, and was confined to his bed by sickness. As soon as the indictment was returned and the case set for a day, they had subpoenas issued for their witnesses, a number of whom lived in Breathitt county, others in Lee and in Fayette. The subpoenas had been placed in the hands of the proper officer, but had not been returned, and none of the witnesses were present. The affidavit set out the facts which they could prove by a number of the absent witnesses. As to others it was stated that they had not been able to see the witness and learn what his testimony would be, or prepare their defense, by reason of the fact that they had been in jail and unable to employ counsel, as stated. The affidavit discloses that the defendant could prove by several witnesses that the deceased had threatened to kill the defendant, Amelia Allen, and had said she would kill her at the first opportunity. It also discloses the fact that by the absent witnesses the defendant could contradict or impeach certain important witnesses for the commonwealth. There is no doubt of the materiality of the evidence referred to. The court seems to have overruled the motion for a continuance upon the ground that the subpoena was not returned executed, but all the defendant could do was to take out the subpoena and put it into the hands of the proper officer, and this she had done. In view of the materiality of the evidence the court abused a sound discretion in forcing the defendant to trial when she had none of her evidence at hand.

It appears from the proof that Mrs. Tutt and her husband lived on the first floor of a house, and that Mrs. Allen and her husband lived on the second floor; Mr. Allen having leased the property, and Tutt occupying the lower floor at the time that he leased it. It also appears that Mrs. Tutt accused her husband of having improper relations with Mrs. Allen, and that she had used very ugly language toward Mrs. Allen. On the evening that the shooting occurred, Mrs. Allen went to the grocery to get some things to eat for supper and after she had gotten the things she went to where her husband was at work. He then returned with her to the house, stopping at the fence. Mrs. Allen went on in the house. There was no evidence for the Commonwealth as to what occurred after she went in, except the dying declaration of Mrs. Tutt, which was to the effect that Mrs. Allen came to her room and shot her with a pistol, when she had nothing and was doing nothing to her. On the other hand, Mrs. Allen's statement was: That Mrs. Tutt had threatened her the day before, and that she heard her quarreling with her husband, sharpening her knife, and saying that she would kill her with it. That the next morning she started to the well to get a bucket of water, and Mrs. Tutt was standing near the well hacking on a plank with a hatchet. She appeared to be mad, so Mrs. Allen did not go to the well, but went to the creek and got the water. That that afternoon as she started to the grocery, Mrs. Tutt was standing in the room with an open knife in her hand, holding it in a threatening manner and she was afraid to go and went back to her room and put a pistol in her belt. That Mrs. Tutt looked at her in a vicious manner, and she ran out of the front door. That she bought the things she wanted for supper, and then went to her husband to get him to go back with her. That when they got to the fence her husband told her to go on upstairs and pay no attention to Mrs. Tutt. That she ran on, and when she got to the hall door, which was not more than two or three feet from Mrs. Tutt's door, Mrs. Tutt turned from her mantel with a Winchester gun in her hand rested on her shoulder. That she jerked her pistol out and fired without taking any aim, and Mrs. Tutt fell. Mrs. Allen and Mrs. Tutt were both 22 or 23 years old. Objection was taken to Mrs. Tutt's dying declaration on the ground that it appeared from the evidence that her statement was reduced to writing, and it is insisted that the writing alone should be introduced; but the proof showed that the writing was not completed and was not signed by Mrs. Tutt. The court therefore properly allowed her dying declaration to be proved byoral evidence. Whether or not the declaration was competent as a dying declaration was a question for the court. All of the testimony of the witnesses showing that the declarant was in extremis, and that the declaration was made under a sense of impending death, was for the court. The only part of the declaration that was competent for the jury was so much of it as related to the circumstances of the homicide; but what Mrs. Tutt said and did about the time the declaration was made may be given in evidence to show that she was at herself, and understood what she was saying and doing when she made the declaration, and the court should...

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27 cases
  • United States v. Lewis
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • June 26, 1973
    ... ... 788, 790 (1900); State v. Holly, 155 N.C. 485, 71 S.E. 450, 453 (1911); Lea v. State, 94 Tenn. 495, 29 S.W. 900 (1895); Mohler v. Commonwealth, 132 Va. 713, 111 S.E. 454, 461-462 (1922). That is when the accused testifies and, of course, the time at which insights regarding veracity become ... Commonwealth, supra note 44, 111 S.E. at 461-462 ...          57 State v. Hobbs, 172 N.W.2d 268, 275-276 (Iowa 1969); Allen v. Commonwealth, 134 Ky. 110, 119 S.W. 795, 797-798 (1909); Moore v. State, 96 Tenn. 209, 33 S.W. 1046, 1048 (1896). See also cases cited supra ... ...
  • Shell v. Commonwealth
    • United States
    • United States State Supreme Court — District of Kentucky
    • October 11, 1932
    ... ... This has long been a familiar rule." ...         See, also, McDonald v. Commonwealth, 86 Ky. 10, 4 S.W. 687, 9 Ky. Law Rep. 230; Allen v. Commonwealth, 134 Ky. 110, 119 S.W. 795, 20 Ann. Cas. 884, and cases cited, supra ...         This has been the uniform rule, that the defendant may introduce evidence as having probative force to disprove guilt, testimony of both good moral character generally, and of a relevant, ... ...
  • State v. Turnbow
    • United States
    • New Mexico Supreme Court
    • July 30, 1960
    ... ... 41-12-19, N.M.S.A.1953 Comp.) could be given effect ...         The state has called our attention to two Kentucky cases: Allen v. Commonwealth, 1909, 134 Ky. 110, 119 S.W. 795, 20 Ann.Cas. 884; and Martin v. Commonwealth, 1937, 269 Ky. 688, 108 S.W.2d 665. These cases stand ... ...
  • Shell v. Commonwealth
    • United States
    • Kentucky Court of Appeals
    • October 11, 1932
    ... ... affirmative evidence, that the door is opened for evidence of ... his bad character upon the part of the prosecution. This has ... long been a familiar rule." ...          See, ... also, McDonald v. Commonwealth, 86 Ky. 10, 4 S.W ... 687, 9 Ky. Law Rep. 230; Allen v. Commonwealth, 134 ... Ky. 110, 119 S.W. 795, 20 Ann. Cas. 884, and cases cited, ...          This ... has been the uniform rule, that the defendant may introduce ... evidence as having probative force to disprove guilt, ... testimony of both good moral character generally, and of a ... ...
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