Baker v. Commonwealth

Citation106 Ky. 212
PartiesBaker v. Commonwealth.
Decision Date16 March 1899
CourtCourt of Appeals of Kentucky

APPEAL FROM KNOX CIRCUIT COURT.

TINSLEY & FAULKNER FOR THE APPELLANT. (JOHN G. MATTHEWS AND J. SMITH HAYS OF COUNSEL.)

COPYRIGHT MATERIAL OMITTED

W. S. TAYLOR, ATTORNEY-GENERAL, FOR THE APPELLEE.

JAMES D. BLACK AND W. R. RAMSEY IN A SUPPLEMENTAL BRIEF FOR THE APPELLEE.

JUDGE Du RELLE DELIVERED THE OPINION OF THE COURT.

Having been convicted and sent to the penitentiary for life, under an indictment for the murder of W. L. White, Thomas Baker has prosecuted this appeal.

The indictment was found by the grand jury of Clay county, and removed to Knox county for trial, on account of the state of lawlessness existing in the county where found.

The evidence tends to show that appellant and his brother, D. Baker, belonged to a faction which was at feud with another faction to which the deceased, White, belonged. On the day of the killing, they had gone out for the purpose, it is claimed, of seeing G. D. Murray, to whom appellant owed some money; met Murray in the road, and turned back with him in the direction of their home. The Bakers were on foot, and armed with guns and pistols, which is explained by the fact that their father had been shot a short time before by one James Howard, who lived in the neighborhood, and who, as they had been informed, had made threats against their lives. There is also evidence showing that White, the deceased, had repeatedly threatened appellant's life.

Murray, who was on horseback, was some forty yards in advance of the Bakers, when they met deceased. Murray spoke to White, who was also on horseback, and White said "Good evening," without looking at him, and, as Murray states, with a peculiar expression on his face. At about the time White met the Bakers, Murray states that he looked round — which was natural, as he knew the men were enemies — and saw White jerk his horse with his left hand, facing appellant, and draw his arm around, when appellant raised his gun quickly, and fired. At that time Murray's horse threw him, but without injury to him, as he lighted on his feet. He states that neither Tom nor D. Baker went any nearer to White, but came on to where Murray was, and went with him to his father's house. Murray saw no pistol in White's hand, either when they passed in the road or at the time of the shooting, but states that the road was very dusty, and the rays of the evening sun were full in his eyes as he looked back. Murray states that immediately at the shooting White fell from his horse, and Tom Baker loaded his gun before coming on to where Murray was.

The Bakers both state that White drew a pistol from his left side, and was presenting it at appellant, when the latter, with one hand, suddenly raised his gun, and, without taking aim fired, and White fell to the ground; that neither of them went near him, but that they went on down the road and left him there, and did not see his pistol after they saw it in his hand at the moment of the shooting.

This pistol was found by Reese Murray — the first person to come to White after the shooting — lying in the dust of the road, with the appearance of having been crawled over. Though a double-action pistol, it was cocked when found.

The evidence tends to show that White was a very reckless man when in drink; that he had been drinking that day, and had in his saddle-bags a broken bottle, which had contained whisky; that he was angry with appellant, and had made threats against his life.

A number of witnesses testified as to the declarations concerning the shooting, made by the deceased, who lived only about a half hour after the shooting.

At the trial, upon demand of appellant, the witnesses were put under rule. The commonwealth requested that John G. White, a brother of the deceased — who had been summoned as a witness for appellant — be excepted from the rule; appellant's objection to this being overruled by the court, Baker filed an affidavit stating that John G. White was his most bitter enemy; had taken a very active part in bringing a large number of partisans of the White-Howard faction in Clay county to Barboursville; that attempts had been made to intimidate appellant's witnesses; and that, if White were permitted to remain in the court room, he believed his witnesses would be intimidated. White made affidavit denying any attempt to intimidate any witness, and stating that he had no personal knowledge of the facts attending the killing of his brother, and that he believed the purpose of summoning him as a witness for the defense was to exclude him from the courtroom and prevent him from informing the attorneys for the Commonwealth as to the evidence in the case, with which he had acquainted himself.

By section 601 of the Civil Code it is provided: "If either party require it, the judge may exclude from the court room any witness of the adverse party not at the time under examination, so that he may not hear the testimony of the other witnesses." By section 151 of the Criminal Code it is provided that the provisions of the Civil Code "shall apply to and govern the summoning and coercing the attendance of witnesses, and compelling them to testify in all prosecutions, criminal or penal actions or proceedings," etc.

Section 601 of the Civil Code has, therefore, been held to apply to a proceeding to disbar an attorney (Walker v. Com., 8 Bush, 96), and to trials for felony (Salisbury v. Com., 79 Ky., 432). But in Johnson v. Clem., 82 Ky., 87, it was said that: "If this provision (Civ. Code Prac., section 601) is to be regarded as mandatory, it would produce much inconvenience in the practice, and often obstruct the proper administration of justice. . . . It will also often occur in the practice that the presence of a witness familiar with the history of the case becomes indispensable by reason of the unavoidable absence of the litigant, and therefore the necessity of placing that construction on the statute must conduce to a just and proper practice by leaving the question as to the exclusion of the witnesses to the exercise of a sound judicial discretion."

We conclude, therefore, that, even if John G. White had been summoned as a witness for the defense, in good faith, the court did not err in permitting him to remain in the court room during the trial for the purpose of informing the attorneys for the Commonwealth as to the evidence the witnesses would give.

It is also urged as error that on the cross-examination of appellant the Commonwealth was permitted, against objection, to prove by him that he was under indictment for felony, viz., house burning and burning a store house. The two indictments were offered in evidence to the jury, and appellant was asked questions whose object was to show that the deceased had been instrumental in instituting the prosecution. He was also asked, against objection, whether he had been indicted for anything else. He was also asked what that indictment was for, and the court excluded the answer to the latter question from the jury, but allowed the answer that he had been indicted to remain. The court also permitted him to be interrogated as to whether he did not go to New York, fifteen or sixteen years before the trial, for the purpose of getting counterfeit money.

It was probably competent, as showing a motive for the killing, to show that he had been indicted at the instance of deceased.

As said by Judge Lewis in the opinion in Martin v. Com., 93 Ky., 193, :

"Motive may be shown in certain cases by a state of facts conducing to make out another and distinct offense from that for which the accused is being tried. . . . Such evidence goes to the jury as a matter of necessity, for the purpose alone of showing motive on the part of the accused to commit the crime, and no more than is necessary to show motive should be allowed, and then the jury told the purpose for which the evidence is to be considered by them. Commander v. State, 60 Ala., 1; Pinckord v. State, 13 Tex., App., 478."

It does not appear in this record that the jury were informed of the purpose for which alone the testimony as to the indictments was to be considered, and this appears to us to be prejudicial error. He was being tried for two offenses. The fact that a grand jury had indicted him for burning a dwelling and a storehouse was used to fix upon him the crime of murder.

As said by Judge Lewis in the Martin case, supra: "This character of evidence is likely to be wrongfully considered by a jury, and made to constitute a part of the offense for which the party is being tried, as it might well be argued that one so depraved as to commit the crime of robbery would not hesitate to commit murder."

We think it was also error to permit appellant to be asked as to other indictments, there being no pretext that this testimony was introduced for the purpose of showing motive. This question appears to have been directly decided in Leslie v. Com., 19 Ky. L. R., 1202, , where it was held error to ask the defendant if he had not been arrested and tried for carrying concealed weapons, and if he had not been arrested for discharging firearms in a town. As said in that case:

"But in the case at bar the question asked could only be admissible as tending to show appellant's guilt of particular wrongful acts, and therefore within the inhibition of section 597 of the Civil Code, which provides that a witness may not be impeached by evidence of particular wrongful acts, except that it may be shown by the examination of a witness or record of a judgment that he has been convicted of felony."

In Saylor v. Com., 17 Ky. L. R., 103, , it was said by Judge Paynter, delivering the opinion of the court: "Under the bill of rights, he can not be compelled to give evidence against himself; but when he becomes a witness for himself in a criminal prosecution, he waives that right, so far as the charge under investigation is concerned. The fact...

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  • Dean v. State
    • United States
    • Mississippi Supreme Court
    • May 27, 1935
    ...98 So. 493; Humber v. State, 19 Ala.App. 451, 99 So. 68; Johnson v. State, 94 Ala. 35, 10 So. 667; White v. State, 136 So. 420; Baker v. Commonwealth, 106 Ky. 212, 50 So. The court below erred in admitting in evidence the testimony of Dr. W. F. Hand, state chemist, with reference to the che......

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