Barnes v. Commonwealth

• Decision Date: 12 March 1918
• Citation: 201 S.W. 318,179 Ky. 725
• Parties: BARNES v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

201 S.W. 318

179 Ky. 725

BARNES v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 12, 1918

Appeal from Circuit Court, Daviess County.

William Barnes was convicted of murder, and he appeals. Affirmed.

La Vega Clements, Clements & Clements, Albert B. Oberst, and Ernest Rowe, all of Owensboro, for appellant.

Chas H. Morris, Atty. Gen., and Overton S. Hogan, Asst. Atty Gen., for the Commonwealth.

CLARKE J.

The appellant was indicted, tried, convicted, and sentenced to imprisonment in the penitentiary for life for the murder of his wife, Fema Barnes, and from that judgment is appealing urging as grounds for reversal that the court erred: First, in overruling his motion for a peremptory instruction; second, in the admission and exclusion of evidence; third, in failing to instruct the jury upon the whole law; fourth, in refusing to grant him a new trial, because of the separation of the jury and because of newly discovered evidence.

1. Defendant and his wife separated in August, 1916, the wife living for a short time in Owensboro at the home of Nellie Blanford, and going from there some time in September to the home of Mr. and Mrs. Fred Racine, who lived about nine miles from Owensboro in the direction of Calhoun, where she remained assisting Mrs. Racine in the work about the house until her murder on November 21, 1916. Defendant had visited his wife at Mrs. Racine's upon several occasions, and on the day before her murder, called Mrs. Racine on the telephone, telling her that on the next day he was going to Calhoun to see about doing some painting; that he would kill some rabbits on the way and stop at her home. About 11 o'clock the next morning defendant arrived at the Racine home on foot, with a rabbit, a 12-gauge, double-barrel shotgun, and two pints of whisky. He and Mrs. Racine cleaned the rabbit and drank some of the whisky, and defendant ate dinner with Mr. and Mrs. Racine and his wife. After dinner Racine went to work on the farm, and defendant, Mrs. Racine, and his wife went hunting on the Racine farm of 140 acres, defendant carrying the double-barrel shotgun he brought with him. Mrs. Racine started with her husband's shotgun, which she left at the barn, and later procured a rifle at the home of a relative living near. Mrs. Barnes was unarmed.

There is some evidence that Mrs. Racine was under the influence of the whisky she and defendant had been drinking, of which Mrs. Barnes did not partake; and there is a conflict in the evidence of Mrs. Racine and that of defendant as to which of them proposed the hunt after dinner and as to the attitude of Mrs. Barnes toward her husband during the day. Mrs. Racine said that Mrs.

Barnes was averse to being with or conversing with defendant, while defendant said his wife was happy in his company, addressed him as "Honey," and that they agreed that day that she would join him in Owensboro the next day and resume their marital relations.

Defendant is contradicted by Mrs. Racine, Henry Stengall, and Aldon Terry in his testimony with reference to a trip by Mrs. Barnes to the spring across the road from the Racine home, shortly before defendant started back to Owensboro about dusk, and as to a razor which defendant had and claimed to have found at the spring, and as to Mrs. Barnes firing two shots from defendant's shotgun. Mrs. Racine also relates that, when Mrs. Barnes returned from the spring, defendant followed her to the back porch, where Mrs. Racine was, and that defendant then had both barrels of his shotgun cocked and loaded; that he kept wanting a private conversation with his wife, but she would not go into a room with him; that witness told defendant he had better be going; that he said he would go, but also said, "I will come back;" that his actions were such as to excite her suspicions to such an extent that as he left she removed her shoes and followed him to the end of the porch to see where he went, and, not seeing him when she got to the end of the porch, she went to the front door and looked for him, but could see nothing of him. Defendant admitted having the gun cocked at the back porch when his wife returned from the spring, but denied the gun was loaded or that he knew, until Mrs. Racine called his attention to it, that the gun was cocked.

Shortly after defendant left the house, about 6 o'clock, and after it had gotten quite dark, Mr. and Mrs. Racine and Mrs. Barnes were seated at the table in the dining room eating supper, Mrs. Racine across the table from and facing an outside window, with Mr. Racine on her left, and Mrs. Barnes across from him and on Mrs. Racine's right, with her right side toward the window, when both barrels of a double-barrel shotgun were discharged simultaneously through the window, striking Mrs. Barnes in the temple, killing her instantly; and, in addition, extinguishing the lamp on the table, breaking many of the dishes, and stunning both Mr. and Mrs. Racine. As soon as they could they got out of the room, and Mrs. Racine called to Mrs. Barnes. In about five minutes they and other witnesses, who also heard the louder, heavier first report, heard another shot fired from a shotgun not far from the Racine house. Two empty yellow shells were found next morning not far from the Racine house, but in the opposite direction from Owensboro.

Defendant, after denying that he killed his wife, testified that, after leaving the Racine home while walking along the road to Owensboro, he fell over a culvert, and one barrel of his gun was discharged, inflicting what proved to be quite a serious flesh wound in the muscles about his left armpit, but which he scarcely noticed at the time; that, when he reached the outskirts of Owensboro and eight or ten blocks from his home, in passing the home of his friend Tom Mosely, he called, and Mosely answered, got out of bed, and invited him in and to spend the night with him; that it was then about 11 o'clock, and he undressed and got in bed with Mosely; that he was not feeling well the next morning, and did not get up to breakfast or until about noon. At about 2 o'clock in the afternoon he was arrested, and he had not mentioned to any one the fact that he was wounded. The officer who arrested him testified that when he took hold of defendant's left arm he discovered that his coat sleeve was wet and sticky with blood, and that the sleeve was nearly shot away at the armpit; that as soon as he got to the jail he called the city physician and had defendant's wound dressed. The physician who dressed the wound testified that, while the wound was entirely superficial, "the muscle here of the breast was shot into quite considerably, and there were also some wounds back of that and a deep wound was located at a point there (pointing to his body)"; that the part of the muscle "that goes over the pectoralis muscle" was torn away; and that defendant was "a month or so" in recovering.

Mrs. Racine testified that immediately after the killing she telephoned to the sheriff; that neighbors began to arrive at the house in a short time; that among the first to arrive were "one of the Terrys and Mr. Branor and Tom Malin"; and the coroner was notified about 9 o'clock, and arrived about 11 o'clock. C. E. Smith says he heard the shots and heard the Racines on their party telephone line call the doctor about 7 o'clock, or about a half an hour, or maybe not quite so long, after he heard the shots. Tom Malin says it was about an hour after he heard the shots before he arrived at the Racine home, and that he stayed until after the inquest was held. Fred Racine says that right away after the shooting he telephoned to Dr. Barr and to the neighbors, which statement he qualified by saying it was probably between a half an hour and hour after the shooting that he telephoned these parties.

It was shown that defendant just before leaving the Racines had two blue and four yellow loaded shells, the latter containing No. 5 shot, and that when arrested he had in his pocket one blue shell and in the gun one blue and one yellow shell. He accounts for the three missing yellow shells by the claim that his wife fired two of them in the Racines' yard just before he left, in which he is contradicted by both of the Racines and several other witnesses, and by the shot that wounded him. The commonwealth accounts for them by the two shots fired simultaneously at Mrs. Barnes and the shot that wounded the defendant. Fred Racine said the shot that killed Mrs. Barnes looked like No. 6 or No. 7.

Proof was introduced by defendant of the weights of No. 5 and other sized shot and of tests made by shooting No. 5 shot from defendant's gun through a fly screen, but not through glass, as the shots were fired that killed Mrs. Barnes, nor at the same angle, in an effort to prove that the shots that killed Mrs. Barnes could not have been fired by defendant.

We have given this rather lengthy résumé of the evidence on both sides, about the competency of which no question was made, in order to show, as we think it does most conclusively, that the court upon neither the evidence of the commonwealth nor upon all of the evidence erred in refusing to take the case from the jury. The evidence of defendant's guilt is circumstantial, and upon some questions conflicting, but it is certainly such evidence as demanded a submission to the jury (Johnson v. Commonwealth, 179 Ky. 40, 200 S.W. 35; Johnston v. Commonwealth, 170 Ky. 766, 186 S.W. 655), and will sustain the verdict (Okerman v. Commonwealth, 176 Ky. 753, 197 S.W. 385; Little v. Commonwealth, 177 Ky. 24, 197 S.W. 514; Martin v. Commonwealth, 178 Ky. 439, 198 S.W. 1158).

2. Complaint is made of the evidence of John Conyers, a policeman of the city of Owensboro, who testified that on August 24, 1916, at or...