Banks v. Commonwealth

• Decision Date: 28 January 1921
• Parties: BANKS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

227 S.W. 455

190 Ky. 330

BANKS v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 28, 1921

Appeal from Circuit Court, McCracken County.

Hardin Banks was convicted of malicious shooting and wounding of another with intent to kill, and he appeals. Affirmed.

Crossland & Crossland and C. B. Crossland, all of Paducah, for appellant.

Chas I. Dawson, Atty. Gen., and Chas. W. Logan, Asst. Atty. Gen for the Commonwealth.

THOMAS J.

The appellant, Hardin Banks, was the defendant in an indictment found by the grand jury of McCracken county accusing him of the crime of malicious shooting and wounding of another with intent to kill, and upon his trial thereunder the jury returned a verdict of guilty and fixed his punishment at confinement in the penitentiary for a term of five years upon which judgment was pronounced, and to reverse it defendant prosecuted this appeal.

A number of alleged errors (some of them formal) are incorporated in the motion for a new trial, but only four of them are seriously pressed by appellant's counsel in his brief, they being: (1) the refusal of the court to direct a verdict of not guilty upon motion made therefor by defendant (2) that the verdict is flagrantly against the evidence, which it is insisted is insufficient to sustain a conviction; (3) the refusal of the court to admit testimony offered to be introduced by the defendant; and (4) the admission of incompetent evidence offered by the commonwealth over the objections of defendant.

Grounds (1) and (2) are so closely related that they may be disposed of together, and in order to do so it will be necessary to make a statement of the substantial facts as proven by the testimony. Sloan's Grocery, located at the corner of Twelfth and Jefferson streets in the city of Paducah, was broken into about 12 o'clock on the night of February 29, 1920. Some policemen of the city seem to have received information at once of the burglary, and they, with others, including John Clements (the person shot), went immediately to the scene, arriving there at five minutes past midnight. Some of the parties stationed themselves in front of the grocery, while others, including Clements, went to the rear, where was located a garage, the door to which they found open, and a transom above the door leading from the garage into the grocery was opened. The parties prized open the back door of the grocery, and Clements started to go in, when he received the shot which struck him in the mouth, the bullet passing through his tongue and lodging in the back part of his neck, from which place it was extracted by physicians at the hospital to which he was taken. The burglar who did the shooting immediately ran out past or over the body of Clements and fled down an alley, but as he passed out of the garage he fired another shot at another member of the party who was standing at or near the garage door, but that shot missed the one at whom it was aimed. A policeman who knew defendant, and by whom he ran that night after the shooting, testified that from the best impression he could obtain of the fleeing burglar he very much resembled in build, size, and features the defendant. There was about three inches of snow on the ground, and no one had traveled the alley after the snow fell and before the burglar ran through it in his flight. Some members of the party followed the tracks to a house not far distant located at Thirteenth and Clay streets. For some reason they did not ascertain that night who lived in that house, but the next morning the tracks were again traced from the grocery to the same house at Thirteenth and Clay streets, and it was there learned that defendant and his father occupied the house, and defendant, who appeared at that time, was wearing a pair of shoes the peculiar shape of which would indicate that the tracks, which were also peculiarly shaped, had been made by those shoes. The next day, which was Monday, some officers of the city again went to the house, and while there they asked the father of defendant for the latter's shoes, and he (willingly so far as the record shows) gave them to the officers, who took them and applied them to some of the tracks left in the snow which had not melted, and there was a complete fit. Defendant was then arrested, and had on a corduroy cap and a mackinaw coat the same as a witness testified that the fleeing burglar wore on the night of the shooting. Defendant at the time of his arrest also had upon his person a 45-caliber Colt's automatic pistol with only three loaded cartridges in it and with two of the chambers empty.

Defendant denied all knowledge of both the burglary and the shooting, and stated in his testimony that he was at a named pool room from early in the night until near 12 o'clock, when he went home and spent the remainder of the night. In support of his alibi to or three witnesses at the pool room say that he left there about 15 minutes before 12 o'clock, and his father testified that he arrived home 10 minutes before 12. Only two of the alibi witnesses fixed the time by observing a timepiece, one of them was the owner of the pool room, and the other one was defendant's father. They do not say that their timepiece, which they so cautiously observed on that particular night, was correct, but be that as it may, the proven facts which we have related establish strong circumstances pointing to the guilt of defendant and which were amply sufficient to authorize a submission of the defendant's guilt to the jury, and its verdict of guilty cannot be said to be flagrantly against the evidence, especially where the only contradiction of the guilty circumstances consists in defendant's denial and the vague and unsatisfactory alibi which he sought to establish by his witnesses.

In the case of Hall v. Commonwealth, 152 Ky. 812, 154 S.W. 397, where the evidence against the defendant was entirely circumstantial, this court, in declining to set aside a verdict of guilty upon the ground that the evidence was insufficient to authorize it, said:

"The unanimous finding of the jury was that the defendant committed the deed. Our rule is not to disturb a verdict in a criminal case, unless it is palpably against the evidence. Wilson v. Com., 140 Ky. 1. While the evidence against the defendant is purely circumstantial, it was sufficient to take the case to the jury, and under the rule we have often laid down we cannot disturb the finding of the jury."

Only the same character of evidence on the part of the commonwealth was introduced in the case of Miller v. Commonwealth, 182 Ky. 438, 206 S.W. 630, and in denying a similar contention made by defendant's counsel, as is made here, we said:

"While this evidence is all circumstantial, it is certainly such evidence as tends to show the guilt of the defendant and required a submission of the case to the jury. Not only so, but this evidence was amply sufficient to sustain the verdict of the jury."

Numerous other cases from this court, rendered prior to and following those referred to, sustain the rulings therein. The numerous cases cited and relied on by counsel for appellant are not in point, since the testimony for the commonwealth in each of them consisted only in vague circumstances with but little if any, probative force and creating at best only a suspicion of the guilt of the defendant on trial. As an illustration of them we...