Arnold v. Commonwealth

• Decision Date: 17 March 1900
• Citation: 55 S.W. 894
• Parties: ARNOLD et al. v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

55 S.W. 894

ARNOLD et al. v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

March 17, 1900

Appeal fro circuit court, Daviess county.

"Not to be officially reported."

Lucien Arnold and Hugh Arnold were convicted of the offense of voluntary manslaughter, and they appeal. Reversed.

Sweeney Ellis & Sweeney, Mathew & Morrison, and R. W. Slack, for appellants.

Clifton J. Pratt, for the Commonwealth.

DU RELLE, J.

The appellants have been convicted of voluntary manslaughter, and their punishment fixed at imprisonment for 21 years. No complaint is urged in argument as to the admission of testimony or the conduct of the trial, except in two respects; the principal contention for a reversal being based upon alleged errors in the instructions, and upon the form of the verdict and judgment, which, it is claimed, render them absolutely void.

During the progress of the trial the court ordered the arrest and removal from the court room of the commonwealth's attorney, and a commonwealth's attorney pro tem. was appointed, who conducted the case for the remainder of the day. It is most ingeniously argued that this was prejudicial to the defense, for the reason that the jury felt that the whole burden and responsibility of representing the commonwealth was imposed upon them. But the attorney returned to the court room on the following day, and conducted the proceedings on behalf of the commonwealth during the remainder of the trial. Under the circumstances, this objection seems to us an immaterial one. It seems to us quite as likely that the occurrence complained of operated to the prejudice of the commonwealth. At all events, we are not authorized to reverse upon abstract speculation as to the impression which might possibly be made upon the minds of the jury by a somewhat unusual matter of court procedure which happened to take place in their presence.

It is also objected that in his opening statement to the jury the commonwealth's attorney, in a somewhat impassioned exordium, stated the reason for his exertions in the case to be his sense of responsibility as an officer, and his desire to have no man's blood upon his hands, etc., and made an appeal to the jury to perform their full duty, lest some one's blood might rest upon their hands in case of lax enforcement of the law. This does not seem to us to be at all improper. The responsibility of jurors to the commonwealth and the defense is not only a customary subject of comment by counsel upon the one side and the other, but it seems to us eminently proper that their attention should be called to the responsibilities which rest upon them, and to the duties they are required to perform, as members of the tribunal created by law to ascertain the facts from the evidence presented in court.

In his closing argument the commonwealth's attorney, in appealing to the jury to inflict a substantial penalty, in order to suppress lawlessness, repeated a conversation with a gentleman from another state concerning the prevalence of crime in Kentucky, in the course of which the gentleman said that in his county there had been but two homicides in 50 years, that both men who committed them were hung by the neck, and that this had had the effect to completely stamp out the commission of murder in his county. The repetition of this conversation does not seem to us to have been proper but, on the other hand, its permission hardly seems to have been sufficiently prejudicial to the defense to rise to the dignity of reversible error. And so of the complaint that applause came from the audience at a statement by the commonwealth's attorney, commenting on the deceased's striking a cousin of appellants, who had threatened his (deceased's) father, that he himself would have acted in like manner under similar circumstances. The court suspended the argument, caused the sheriff to make search for the persons who had been guilty of the demonstration, and threatened condign punishment in case of its repetition. All was done that could be done to counteract the effect upon the jury of the improper applause, except to set aside the swearing of the jury and impanel a new one, and this was not asked for. We think that this was not error.

In order to reach a correct understanding of the objections to the instructions, it is necessary to state briefly some of the facts relating to the homicide. It appears that the Arnolds and three young men by the name of Mattingly, their cousins, had returned that day from a political meeting at Owensboro. Lucien Arnold and two of the Mattinglys were quite drunk, noisy, and profane. One of the Mattinglys is said to have made a demonstration with a knife against an elderly man by the name of Robinson, the father of the deceased whereupon Robinson knocked him down with his father's cane. Hugh Arnold seems to have been endeavoring to take his brother home. Lucien, when they reached the store where Mattingly had been knocked down, demanded to know who had hit his cousin, and, uttering threats to cut the man who did so having a knife in his hand at the time, Luther Robinson struck Lucien, knocking him down. It appears that Head, a constable, had summoned Luther Robinson, the deceased, to assist in arresting Lucien Arnold. The Arnolds started away but one of them turned back and threw a brick, a piece of which struck the constable. Thereupon there appears to have been an attempt to arrest Lucien Arnold by Head and Robinson. Hugh Arnold fired several shots at Robinson, and then, while Robinson was engaged with Lucien Arnold, who had a knife and was endeavoring to cut him, Hugh Arnold drew his knife and inflicted wounds upon Robinson's back and neck from which he died. There is ample evidence to support the verdict, if the instructions were correctly given, and the verdict and judgment in proper form.

The first two instructions are given upon the subject of murder; the first being given on the theory that Lucien committed the homicide, with Hugh aiding and abetting, and the second upon the theory that Hugh committed the homicide, with Lucien aiding and abetting. It is objected that neither of these instructions requires the jury to believe the aiding and abetting to have been done with malice aforethought, and that though Lucien Arnold may have, with malice, committed the homicide, the aiding and abetting by his brother may have been done in sudden heat and passion, and without previous malice. This exact question appears to have been decided in Mickey v. Com., 9 Bush, 594, in an opinion by Judge Lindsay. Said the court in that case: "'If several persons are present at the death of a man, they may be guilty of different degrees of homicide, as one of murder and another of manslaughter; for if there be no malice in the party striking, but malice in an abettor, it will be murder in the latter, though only manslaughter in the former.' 1 East, P. C. p. 121, c. 5, § 121. So, likewise, it may be murder in the party striking the fatal blow, and only manslaughter on the part of the abettor. 1 Hale, P. C. 446; Russ. Crimes, 510. *** The instruction under consideration authorized the jury to convict in case they believed that Mickey was present, or near enough to give assistance, and did aid, abet, or encourage his companions, although they may have believed that he acted upon sudden impulse, without actual malice upon his own part, and wholly ignorant of the malicious motives and felonious intentions of his companions. For this error the judgment must be reversed." But inasmuch as appellants were not convicted of murder under these instructions, but of manslaughter, under other instructions, this error did not prejudice their substantial rights.

The third instruction is as follows: "The court further instructs the jury that although they believe from the evidence, beyond a reasonable doubt, that Lucien Arnold, at the time and in the manner supposed in the first instruction stabbed Luther Robinson, killing him, and the said Hugh Arnold was, as supposed in the first instruction, present, aiding, abetting, and assisting the said Lucien Arnold, but they entertain a reasonable doubt as to whether such cutting and killing was done with malice aforethought, but do believe from the evidence, beyond a reasonable doubt, that such cutting and killing was not done in the necessary, or what reasonably appeared to the defendants, or either of them, their necessary, self-defense, and was done in sudden heat of passion or sudden affray, they should find defendants guilty of voluntary manslaughter, and fix their punishment at confinement in the penitentiary for a period of not less than two nor more than twenty-one years." The fourth instruction is exactly similar to the third, except that it is predicated upon the idea that Hugh Arnold did the cutting, with Lucien present, aiding, abetting, and assisting him. The objection made to this instruction is that, in order to excuse the defendants on the ground of self-defense, it requires the jury to believe the homicide to have been committed in their necessary self-defense, and thereby excludes from the jury the right of either defendant to commit the homicide in the necessary defense of his brother. This objection is attempted to be remedied in instruction No. 8, to be considered later. In instructions 6 and 7 the court undertakes to be more explicit upon the doctrine of reasonable doubt. Those instructions are as follows: "(6) The court further instructs the jury that under instructions Nos. 1 and 2 they may find both or either of the defendants guilty of murder, as may be warranted by the evidence; or if, from all the evidence, they entertain a reasonable doubt whether both or either of defendants is proven guilty of the offenses defined in instructions...