Barnett v. Com.

• Decision Date: 24 March 1961
• Citation: 348 S.W.2d 834
• Court: United States State Supreme Court — District of Kentucky
• Parties: Earl BARNETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Page 834

348 S.W.2d 834

Earl BARNETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

March 24, 1961.

Rehearing Denied Sept. 22, 1961.

Nickell & Walter, West Liberty, E. B. Rose, Rose & Short, Beattyville, for appellant.

Jo M. Ferguson, Atty. Gen., H. D. Reed, Jr., Asst. Atty. Gen., for appellee.

MONTGOMERY, Judge.

Earl Barnett was convicted of the offense of voluntary manslaughter in the homicide of Fallon McIntosh. He was sentenced to serve five years in the state penitentiary. On appeal, he urges that: (1) His plea of res judicata should have been sustained; (2) the court erred in failing to admonish the jury properly and to set aside the swearing of the jury because of inadmissible and prejudicial testimony; and (3) the evidence is insufficient to sustain the conviction.

Fallon McIntosh and Bert Fields were found slain in the Fields home. Pearlie Fields, Bert's wife, was indicted for both homicides. She was acquitted of killing her husband but was found guilty of voluntary manslaughter of Fallon McIntosh and was sentenced to serve fifteen years' confinement. At both trials Pearlie testified that appellant killed both men. On the basis of Pearlie's testimony, two indictments were returned by the August 1957 Breathitt County grand jury against Earl Barnett in which he was charged with killing McIntosh and Fields, respectively. These prosecutions were moved to Morgan County for trial on a change of venue. The first trial of appellant for killing McIntosh resulted in a hung jury. The second trial resulted in his conviction.

The plea of res judicata is based on appellant's insistence that the prior conviction of Pearlie Fields for the killing of McIntosh bars the later conviction of appellant for the same killing.

Res judicata is a rule of universal law pervading every well-regulated system of jurisprudence. It has two bases, embodied in the common law; the one, public policy and necessity, which makes it to the interest of the state that there should be an end to litigation; the other, the hardship on the individual that he should be vexed twice for the same cause. Rex v. Duchess of Kingston, 20 Howard State Trials 538; 50 C.J.S. Judgments § 592, page 11. The doctrine of res judicata is applicable to judgments in criminal prosecutions and is subject to the same limitations as apply in civil cases. Commonwealth v. Spivey, 243 Ky. 483, 48 S.W.2d 1076; Ex parte Mote, Ky., 275 S.W.2d 48; 1 Wharton's Criminal Law and Procedure, Section 174, page 406; Annotation, 147 A.L.R. 992. Briefly, the doctrine is that a fact or matter distinctly put in issue and directly determined by a court of competent jurisdiction cannot afterwards be disputed between the same parties.

A former judgment may be pleaded as res judicata only by the parties to the action and their privies and not by strangers. There must be a substantial identity of the parties to the action in which the judgment was rendered in the same capacities and in the same antagonistic relation, or else they must be in privity with the parties in such action. For the purpose of the doctrine, a party is one who has a direct interest in the subject matter of the action and has a right to control the proceedings, make defense, examine witnesses, and appeal if an appeal lies. Hazard Lumber & Supply Co. v. Horn, 228 Ky. 554, 15 S.W.2d 492; Fordson Coal Co. v. Wells, 245 Ky. 291, 53 S.W.2d 564; McKenzie v. Hinkle, 271 Ky. 587, 112 S.W.2d 1019; Compbell v. McCoy, Ky., 306 S.W.2d 843; 50 C.J.S. Judgments §§ 756, 763, and 768, pages 275, 289, and 297, respectively.

In discussing the operation of the rule, Sims, C. J., quoting the opinion of the trial judge, Honorable W. H. Spragens, wrote:

'The rule should work both ways and so far as I have found the courts agree that the 'estoppel must be mutual. A party should not be permitted to claim the right to assert in his favor estoppel by a judgment in a suit, if an unfavorable judgment in the same suit could not have been asserted as an estoppel against him." Montgomery v. Taylor-Green Gas Co., 306 Ky. 256, 206 S.W.2d 919, 921.

Res judicata should not be confused with former acquittal or conviction.

The application of the doctrine of res judicata here is limited to a determination of whether the Commonwealth is estopped to prosecute Earl Barnett for the unlawful killing of Fallon McIntosh after Pearlie Fields had been convicted of the same homicide. This case is unique in that the defendant here sought in a later trial the protection of res judicata by pleading the conviction of another party in an earlier trial.

Neither the interest of the state in bringing litigation to an end nor the hardship to the individual by being twice vexed in the same action affords any basis for relief to appellant. Earl Barnett was not a party to the prosection in which Pearlie Fields was convicted. There was no privity or identity of interests or capacities and there was a distinct difference in antagonistic relations. It was Pearlie's testimony in her defense that prompted the indictment against appellant. There is no mutuality of estoppel since an acquittal of Pearlie could not have been introduced in the prosecution against appellant. Steely v. Commonwealth, 132 Ky. 213, 116 S.W. 714; Arnett v. Commonwealth, 261 Ky. 607, 88 S.W.2d 276; State v. Wilson, 236 Iowa 429, 19 N.W.2d 232; 50 C.J.S. Judgments § 754, page 268. In Santa Fe Grain Co. v. Minneapolis-Moline Power I. Co., Tex.Civ.App., 86 S.W.2d 835, it was held that a defendant cannot plead in bar of an action against him the fact that the plaintiff has already recovered a judgment on the same cause of action against a stranger not in privity with defendant or jointly bound with him.

Blue Valley Creamery Co. v. Cronimus, 270 Ky. 496, 110 S.W.2d 286, and Overstreet v. Thomas, Ky., 239 S.W.2d 939, relied on by appellant, are not applicable since there was privity under the doctrine of respondeat superior. The foreign cases cited by appellant are distinguishable on the basis of privity.

The rule contended for by appellant would make a mockery of justice, for under it one guilty of murder could boast openly of its commission without fear of prosecution if another, no matter how innocent, had been convicted previously. To look at the other side of the situation, should it be considered that Pearlie is not guilty of the homicide then her avenue of escape is by executive clemency. The plea of res judicata was properly denied by the trial court.

Appellant urges strongly that the evidence is insufficient to sustain the conviction. He insists that the testimony of Pearlie is without probative value because of inconsistencies, changes, and contradictions in her statements and testimony, and that there is not enough other testimony to sustain the verdict. The verdict is based on the testimony of Pearlie as corroborated by the testimony of Carrie McIntosh, Edna Howard, Reece and Anna Holbrook, and Norman Allen.

Pearlie testified that she and Bert lived on Smith Branch above Quicksand about six miles from Jackson in Breathitt County. Bert was employed on the night shift at a mine forty miles from home.

Pearlie said that she had known appellant about eight or nine months prior to the killing and that he first came to her home at the invitation of her husband, with whom he had been drinking. In describing the relations between her husband and appellant, Pearlie said: 'My husband had been hauling whisky for Earl,' to which an objection was sustained. The jury was admonished not to consider the statement for any purpose and that drinking and whisky had nothing to do with the case on trial. Pearlie, in answer to a question, said that appellant had been coming to her home for about eight or nine months before the killing. Appellant then moved to set aside the swearing of the jury, which motion was overruled. Prior to the testimony objected to, Pearlie had testified, without objection, that appellant had been coming to her house 'almost every night part of the time' before the killing and that they had been having 'intimate relations.'

Appellant urges that the court committed reversible error with respect to the testimony as to intimate relations and whisky business. There was no error as to the 'intimate relations' testimony because of the failure to object to its introduction. Hodge v. Commonwealth, Ky., 287 S.W.2d 426; Karl v. Commonwealth, Ky., 288 S.W.2d 628. It was not the duty of the court to admonish the jury as to the purpose of the evidence in the absence of such a request by appellant. Renaker v. Commonwealth, 172 Ky. 714, 189 S.W. 928; Acree v. Commonwealth, 243 Ky. 216, 47...