Bailey v. Commonwealth

• Court: Kentucky Court of Appeals
• Writing for the Court: THOMAS, J.
• Citation: Bailey v. Commonwealth, 193 Ky. 687, 237 S.W. 415 (Ky. Ct. App. 1922)
• Decision Date: 10 February 1922
• Parties: BAILEY v. COMMONWEALTH.

237 S.W. 415

193 Ky. 687

BAILEY v. COMMONWEALTH.

Court of Appeals of Kentucky.

February 10, 1922

Appeal from Circuit Court, Rockcastle County.

John Bailey was convicted of murder, and appeals. Affirmed.

Hiram H. Owens, of Barbourville, C. C. Williams, of Mt. Vernon, and R. N. Jarvis, of Barbourville, for appellant.

Chas I. Dawson, Atty. Gen., and Thos. B. McGregor, Asst. Atty Gen., for the Commonwealth.

THOMAS J.

The appellant, John Bailey, was tried in the Rockcastle circuit court under an indictment found and returned against him by the grand jury of Knox county, in which he was charged with murdering, in the latter county, Beverly C. White. The killing occurred on April 8, 1921, at a small station called Heidrich, about three-fourths of a mile from Barbourville and where the Cumberland & Manchester Railroad, running from Manchester in Clay county connects with one of the main lines of the Louisville & Nashville Railroad. The venue was changed from Knox county to Rockcastle county, and at the trial the jury convicted the defendant and fixed his punishment at a life term in the penitentiary. His motion for a new trial was overruled, and judgment was pronounced on the verdict, and by this appeal he seeks a reversal upon three grounds, which are: (1) Incompetent testimony introduced by the commonwealth over his objections; (2) prejudicial misconduct of the commonwealth's attorney in his closing argument to the jury; and (3) error of the court in selecting the jury to try the case. There is no complaint about instructions which the court gave or refused to give to the jury, nor is the sufficiency of the testimony to support the verdict questioned, and in disposing of the grounds relied on for a reversal of the judgment we will make reference to only such portions of the testimony as we deem necessary to an understanding of the matters discussed.

Under ground 1 it is seriously contended that portions of the testimony of Luther Hatton and B. P. Walker, both of whom were introduced by the commonwealth, are greatly prejudicial to the substantial rights of the defendant, and counsel insists, with great emphasis and seeming confidence, that the complained-of testimony is of such a nature as compels this court, under rules of criminal practice, to reverse the judgment. Taking up first the complained-of testimony of the witness Hatton, the record discloses that the deceased, on a late afternoon train the day before he was killed, went to Manchester on a business mission, and on that train was James Bailey, the brother of the defendant, who did not testify in the case, but according to the testimony of defendant his brother came on that train to Fount, the home of their father, where defendant was living, to pay the family a visit, but he tarried but a short while, and went back on the next south-bound train towards Barbourville to a station called Girdler, where he spent the night, and returned the next morning in time to catch the same train back to Barbourville upon which deceased was expected to and did return from Manchester. Defendant, his brother, and their father boarded that train together with some of their friends when it arrived at Fount, and, according to the testimony, defendant, between that point and Heidrich where the killing occurred, made several trips through the train, including what is commonly known as the "ladies' coach," in which deceased was riding seated, near the rear end of it. The witness Hatton was also in that coach and engaged the deceased in conversation, and the portion of his testimony complained of relates to what occurred just before arriving at Heidrich. Some of it, as copied in the record and complained of in brief, was not excepted to, and other portions of it the court excluded from the consideration of the jury. The whole of the complained-of testimony of the witness Hatton related to an effort on the part of the commonwealth to show why the witness and the deceased remained in the car till all of the passengers had alighted and then got off at the rear end of it. The commonwealth was endeavoring to have the witness state whether White suggested such a course, but in each instance the court sustained the objection to the questions, and at one time when the witness answered before the objection was acted upon the court promptly admonished the jury not to consider it. But the witness was permitted to say, "I went out that way because Mr. White went out that way," and, further, that he had stated to deceased just before arriving at the station that "It looks like a pretty bad situation, Bev," and that he (witness) did not know "whether they (the Baileys) like me very well or not," and after that the two decided to and did leave the train at the rear end. The above is the substance of all the testimony given by the witness Hatton complained of on this appeal, to which exceptions were taken and which the court admitted over defendant's objections. It will be observed that no statement of the deceased was allowed to be introduced, and the testimony as a whole was but explanatory of conduct which might otherwise be clothed with suspicion. It related only to a collateral circumstance which occurred some time before the killing, and in reality was as much calculated to benefit the defendant as the prosecution, since its effect was to show that deceased was aroused and became suspicious of the defendant, and perhaps his associates on the train, particularly his brother and father, and because thereof concluded to prepare to do them harm. So that, if we should hold that the testimony was technically erroneous, it could not convincingly be insisted, in the light of the entire testimony, that it was sufficiently prejudicial to authorize a reversal of the judgment.

The witness Walker was the sheriff of Knox county, and saw the body of the deceased shortly after he was killed, and observed his clothing as well as his body and the bullet holes made therein. On the witness stand he was permitted to explain the location of the wounds in the body and to take the clothing and compare the holes therein with the wounds in the body. Incidentally he stated that "one bullet went in here and came out there," etc., but in most, if not all, instances he explained the reasons for his statement as to the direction the shots were fired and gave the facts upon which his statements were based, to wit, the clothing with the holes therein, was exhibited to the jury for their inspection. Under the circumstances the opinion of the witness as to the points of entrance and exit of the various shots fired into the body of the deceased could not possibly have influenced the jury prejudicially against appellant, for they had before them the very facts upon which the opinion of the witness was based, and which opinion corresponded with all the testimony of all the...