Ball v. Commonwealth

• Decision Date: 08 May 1907
• Citation: 125 Ky. 601,101 S.W. 956
• Parties: BALL v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

101 S.W. 956

125 Ky. 601

BALL v. COMMONWEALTH.

Court of Appeals of Kentucky.

May 8, 1907

Appeal from Circuit Court, Knox County.

"To be officially reported."

J. F Ball was convicted of murder, and he appeals. Affirmed.

Rhorer Ainsworth & Dawson, for appellant.

N. B Hays, Atty. Gen., B. B. Golden, and C. H. Morris (W. T. Davis, O. V. Riley, Wm. Lewis, and Wm. R. Lay, of counsel), for the Commonwealth.

LASSING J.

In October, 1905, appellant, J. F. Ball, shot and killed Jack Bolen in Middlesboro, Ky. He was indicted in the Bell circuit court for murder, and, on motion of the commonwealth, a change of venue was granted to the Knox circuit court. When the case was called for trial in the Knox circuit court, on motion of the commonwealth, the indictment was quashed and the case referred to the Knox county grand jury, which returned a new indictment in two counts. The first count charged appellant and his brother, C. D. Ball, with having entered into a conspiracy to kill Jack Bolen, and the second count charged appellant with his murder. Upon this indictment returned by the Knox county grand jury appellant was tried, found guilty, and his punishment fixed at confinement in the penitentiary for life.

The grounds relied upon for reversal in the motion for a new trial are numerous, but we will consider only those which we deem material.

The record shows that appellant had been a candidate for the office of sheriff of Bell county before a Republican primary; that the deceased openly espoused the cause of his opponent on the alleged ground that Ball was not a suitable man for the office, and appellant offers much testimony to the effect that during the progress of that campaign deceased frequently spoke very bitterly and disparagingly of him and his candidacy. Appellant was defeated, and a week or 10 days after his defeat he went to the home of deceased, in which he conducted his business--that of a barber--for the purpose, as he alleges, of ascertaining why deceased had spoken of him as he had heard he had. He admits that he was armed on this occasion, and, although he disclaims any intention on his part of raising a disturbance, or doing any injury to deceased, yet from the evidence it is plain that he and deceased had a wordy altercation, and that but for the timely interference of a citizen and the little 12 year old daughter of deceased, the result of this visit would have been serious, if not fatal, to deceased. Deceased ordered him from his house. He left, went outside, and for some little time sat in front of deceased's place of business. He was in an ugly and threatening mood. Thereafter deceased filed suit in the Bell circuit court against appellant, charging that on the occasion of this visit appellant had said to him, "You murdered your wife, and you know it," and later, when the grand jury of Bell county was assembled, he had gone before it and testified as to the difficulty at his house with appellant, and upon this testimony appellant was indicted for assault. Appellant's brother, C. D. Ball, was at the county seat upon the same day that the indictment for assault was returned. Whether appellant knew that this indictment had been returned the record does not show, but it may be fairly inferred from the evidence that he did, inasmuch as he and his brother, C. D. Ball, were seen in an earnest conversation in the rear of deceased's house a short time before the killing, and the record does show that C. D. Ball knew that this indictment had been returned, and was very much incensed because of it. Deceased had in his employ a barber named Lane. About 7:30 o'clock he sent Lane to the hotel a short distance from the barber shop to get some change for $1. When Lane left the shop, deceased was sitting in a chair near the door. As he approached the hotel, he saw three men standing or sitting in front of it, and appellant conversing with them. Ball immediately left the hotel and walked down the street in the direction of the barber shop. When he got opposite the door, he was seen to fire three shots in rapid succession. After the first shot a noise was heard in the shop as though some one or something had fallen upon the floor. After the third shot was fired Ball walked away. About this time, Lane, having received the change, had returned to the shop, and he and the other people who gathered there found deceased lying upon the floor, as though he had fallen from the chair, his feet rather doubled under him, and his right hand in the right hand pocket of his trousers. He died almost immediately. A bullet wound was found in the back of his head, and, from the undisputed testimony of the doctors who made an examination of the wound, the shot had been fired from behind, the bullet passing entirely through the head. Three holes were found in the screen door near together, and all of them were about three feet from the bottom of the door. Deceased was searched, and had no weapon upon his person other than an ordinary pocketknife. Some cartridges for a 38 Smith & Wesson pistol and some shells for a 12-gauge shotgun were found in his pockets. In one of the stand drawers was a 38 Smith & Wesson pistol, and in the back of his office or bathroom was a double-barrel shotgun. The record shows that after the first altercation with appellant deceased had borrowed a shotgun and secured a pistol, and had stated to several people that he had them for the purpose of defending himself, and some of the witnesses say that he told them he had them for the purpose of killing appellant; but, however this may be, it is certain that on this occasion he was not armed. Appellant, testifying for himself, says that on the evening of the killing, just as he got opposite the door, or nearly so, he spoke to a gentleman who passed; that deceased evidently recognized his voice, and that he thereupon sprang out of his chair and made an effort as though to draw a pistol from his pocket, and that, believing that he was going to do so and shoot him, he fired the three shots in rapid succession; that at the time that he fired the first shot deceased was standing erect. The record shows that deceased was a man five feet six inches tall, and that the floor of the barber shop was 17 inches above the level of the pavement, and that the bullet holes in the door were about three feet from the floor, one of the bullets passing through the back of the chair in which deceased was sitting when the witness John Lane left the shop not more than two minutes before he was killed. This is in brief the testimony.

During the progress of the trial, on motion of the commonwealth, the court had the body of the deceased exhumed and examined by skilled physicians, and the testimony of the physicians for both the commonwealth and the accused shows that deceased was shot in the head, the bullet entering below and back of the left ear, and ranging through the head, passed out near the right temple, the range of the bullet being slightly upward. This was the only wound in the head.

Appellant complains that, as no evidence of a conspiracy was shown, the trial court erred in permitting the witnesses Fuson and Riley to testify as to the conduct and statements of C. D. Ball made in Middlesboro, in the office of Riley, and in the presence of Jack Bolen, a day or two before he was killed. This evidence was objected to at the time it was introduced, and admitted over the protest of appellant's counsel. Later the trial court, evidently having some doubt as to whether a conspiracy had been proven, withdrew this testimony from the jury, telling them that it had been introduced or admitted through error, and that they must not consider it for any purpose whatever. Appellant insists that this was most damaging testimony, and that, although it was withdrawn from the jury, nevertheless it had already produced an effect upon the minds of the jurors from which they could not rid themselves, even though instructed by the court to do so. To this conclusion we cannot agree. During the progress of a trial evidence is frequently offered which at the time it is difficult for the trial judge to know whether it is competent or not. This is esspecially true in that class of cases where a conspiracy is charged, and it is only after the party offering such evidence has had an opportunity to introduce other proof or other evidence which would make it competent that the court may determine, from a consideration of the whole, whether it is competent or not. If the evidence introduced later has had the effect of making the evidence complained of competent, then it should properly remain for the consideration of the jury, and, if in the opinion of the trial judge it has not done so, then it should be excluded. In the case before us appellant had been heard to say, on an occasion after he had gone to deceased's house and made an assault upon him, that he "would get even with him yet," or words to that effect. After deceased had been assaulted by appellant he had brought suit for slander in the Bell circuit court against appellant, and later, upon the assembling of the grand jury, had gone before the grand jury and given testimony there, upon which testimony appellant had been indicted for an assault. Upon the same day that he appeared before the grand jury, and immediately after he had returned from the grand jury room to the office of Riley, C. D. Ball made the statements about which Fuson and Riley testified, and the commonwealth showed by an unwilling witness that on the evening before the killing C. D. Ball and appellant were seen in a close and earnest conversation in the alley near the Bolen house, and both were looking in the direction of the Bolen house; and, although appellant testified, he offered no...