Barton v. Commonwealth

• Decision Date: 30 October 1931
• Citation: 43 S.W.2d 55,240 Ky. 786
• Parties: BARTON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

43 S.W.2d 55

240 Ky. 786

BARTON v. COMMONWEALTH.

Court of Appeals of Kentucky

October 30, 1931

Appeal from Circuit Court, Ohio County.

Otha Barton was convicted of voluntary manslaughter, and he appeals.

Affirmed.

Heavrin & Martin, of Hartford, for appellant.

J. W Cammack, Atty. Gen., and James M. Gilbert, Asst. Atty. Gen for the Commonwealth.

WILLIS J.

Otha Barton and Oscar Vittitoe were jointly indicted for the murder of Cecil Woolen. Barton was tried separately convicted of voluntary manslaughter, and sentenced to serve twenty-one years in the penitentiary. He prosecuted an appeal to this court, which resulted in a reversal of the judgment. Barton v. Commonwealth, 238 Ky. 356, 38 S.W.2d 218.

The reversal was rested upon a single error committed on the first trial by the admission of testimony to prove certain statements of the deceased, Cecil Woolen. It was held that the statements were not competent as part of the res gestae or as dying declarations.

The case was tried again promptly and Barton was again convicted of voluntary manslaughter. The last jury fixed his punishment at eleven years' imprisonment, but the court deducted the time served by Barton under the former conviction, and imposed a sentence of ten years, six months, and seventeen days in the penitentiary.

Barton has appealed again, insisting that the court erred: (1) In the admission of evidence, (2) in giving instructions to the jury, and (3) in refusing to set aside the verdict because it was palpably against the evidence.

1. The reversal of the former conviction, as noted, was rested upon the admission of the testimony of Sanders and others narrating the statements of the deceased on his return to the church after he had received the injuries which probably produced his death. The admission of the testimony was held erroneous because the statements were not made when Woolen was in extremis, and were not the spontaneous result of the occurrence, but a narrative of past events. In a petition for rehearing, the commonwealth sought to sustain the conviction on the ground that Barton was not prejudiced by the testimony because he was present when some similar statements were made. The petition for rehearing was denied, and the points raised therein were not discussed in the former opinion. But a judgment of this court upon an appeal constitutes the law of the case thereafter, binding alike upon the trial and appellate courts, unless there is a material change in the issues or the evidence. Johnson v. Com., 225 Ky. 415, 9 S.W.2d 53; McDaniel v. Com., 185 Ky. 608, 215 S.W. 544.

The judgment of this court upon an appeal settles all questions then presented, or properly before the court, whether discussed in the opinion or tacitly concluded thereby. Slone v. Com., 235 Ky. 319, 31 S.W.2d 387; Slaughter v. Com., 152 Ky. 128, 153 S.W. 46; Hall v. Com., 220 Ky. 715, 295 S.W. 1067; Gambrel v. Com., 142 Ky. 839, 135 S.W. 404; Steele v. Com., 199 Ky. 760, 251 S.W. 1014.

The former appeal settled conclusively that the statements of Woolen referred to by the witness Sanders, and by others, were not competent as res gestae, or as dying declarations, and that their admission, as such, constituted prejudicial error.

The question now presented is whether certain statements of Woolen, accusing Barton of striking him, made in the presence and hearing of the accused, and in the face of which he silently walked away, are competent against the defendant on trial. That question was not presented or determined upon the former appeal, and it must be settled now as an original proposition. The trial court confined the evidence to statements accusatory in their nature and made in the presence and hearing of the accused, and which were followed by the silence of the accused, or by his departure from the presence of the declarant. The facts were developed differently and more in detail than appeared upon the first trial, and the differences were material and substantial, raising a distinct legal proposition. It is argued, however, that admissions by silence are not competent, unless it appears that the accused actually heard the statements under such circumstances that he was called upon to deny or explain them, and had a fair opportunity to do so.

The decisions support the rule that declarations accusatory in character, made in the presence and hearing of the accused under such circumstances as to call for a denial or explanation by him, and he stands silent, or makes an incriminating response, are admissible, for whatever weight the jury may ascribe to them. Merriweather v. Com., 118 Ky. 870, 82 S.W. 592, 26 Ky. Law Rep. 793, 4 Ann. Cas. 1039; Smith v. Com., 140 Ky. 599, 131 S.W. 499; Bennett v. Com., 171 Ky. 63, 186...