Arnett v. Com.
| Decision Date | 02 July 1971 |
| Citation | 470 S.W.2d 834 |
| Parties | James Woodrow ARNETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Cordell H. Martin, Hindman, Rudy Yessin, Edward L. Fossett, Smith, Reed, Yessin & Davis, Frankfort, Ed Bach, Campton, for appellant.
John B. Breckenridge, Atty. Gen., James Wooten, Asst. Atty. Gen., for appellee.
VANCE, COMMISSIONER.
The appellant, James Woodrow Arnett, indicted for willful murder, was convicted of voluntary manslaughter and sentenced to 10 years' confinement in the penitentiary. In his appeal, he contends the trial court erred by admitting evidence of the commission of previous offenses; that the jurors, while deliberating the case, were allowed to make telephone calls and that the jury was improperly allowed to separate.
The appellant shot and killed Carl Gene Adams during or immediately following an altercation between them. After the testimony for the defense was completed, the Commonwealth called a witness in rebuttal who testified concerning an entirely separate event of that day as follows:
Q. 'I will ask you this question: If while he was there at the filling station where you were working at that particular time, if at that place and time he had a pistol?'
A. 'Yes.'
Q. 'How do you know that he had a pistol?'
A. 'Well, he pulled it on me.'
BY CORDELL H. MARTIN: 'Objection, your Honor, and move to exclude.'
The appellant moved to set aside the swearing of the jury on the ground that the testimony constituted proof against him of the commission of another crime. The Commonwealth contended the evidence was admissible to show that the appellant had a gun in his possession.
We acknowledge a rule of law of long standing in Kentucky in criminal cases that evidence of crimes, other than the crime charged in the indictment, is not competent, subject to the exception that such evidence is competent to establish identity, guilty knowledge, intent, or motive, or when other offenses are so interwoven with the one under trial that they cannot be properly separated. Rake v. Commonwealth, Ky., 450 S.W.2d 527 (1970); Bell v. Commonwealth, Ky., 404 S.W.2d 462 (1966).
The testimony in question tended to show acts which constituted the commission of another offense by the accused (drawing of flourishing a deadly weapon, KRS 435.200) at a different time and place. It was, of course, relevant to show that appellant was in possession of a weapon, but he freely admitted that fact throughout the trial. The testimony did not establish identity, guilty knowledge, intent or motive and we feel that it should have been excluded.
The trial court admonished the jury as follows:
The question is whether the objectionable testimony was so prejudicial in its effect that it was not cured by the admonition. We think it was not.
The appellant, by his onw, admission, had been in an argument with the deceased and his companions several hours before the shooting and the evidence of his guilt was overwhelming. The penalty imposed did not approach the maximum.
RCr 9.24 provides:
'Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.'
We do not believe the error complained of affected the substantial rights of the appellant.
A companion of the decedent testified that he and the decedent attempted to avoid the appellant on the day in question by going to Paintsville where appellant was not likely to be because 'he was wanted over there for pistol whipping that banker's son.' The appellant objected to this testimony and the court sustained the objection. The appellant did not ask for any further relief from the trial court. He cannot now be heard to argue that the trial court should have granted relief at the trial which was not requested.
In his motion for a new trial the appellant alleged that certain members of the jury were permitted to make telephone calls and were improperly allowed to separate while they were deliberating the case .
The Commonwealth admits...
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Smith v. State
... ... State v. Raspberry, 452 S.W.2d 169 (Mo.1970); Arnett v. Commonwealth, 470 S.W.2d 834, 837 (Ky.1971). We have been cited to no case which holds that the mere presence of a telephone in the jury room, ... ...
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Harry v. Commonwealth of Ky.
... ... the act of dry-firing towards Felice during his explanation of the weapon was nothing more than propensity evidence, as was prohibited in Arnett v. Commonwealth, 470 S.W.2d 834, 837 (Ky.1971). We note, however, that the brandishing of the weapon in Arnett, tended to show acts which ... ...
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