Berry v. Commonwealth
| Decision Date | 25 January 1929 |
| Citation | 227 Ky. 528,13 S.W.2d 521 |
| Parties | BERRY v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Hopkins County.
Johnson Berry was convicted of murder, and he appeals. Reversed, and new trial ordered.
Fox & Gordon, of Madisonville, for appellant.
J. W Cammack, Atty. Gen., and S. H. Brown, Asst. Atty. Gen., for the Commonwealth.
On Sunday, September 4, 1927, Johnson Berry shot his divorced wife, Susie Berry, and from that shooting she died a few hours thereafter. He was charged by indictment with murder upon his trial he was found guilty, and his punishment fixed at death. The severity of this punishment is our apology for the length and elaboration of this opinion.
This is a noteworthy record. The order book entries are full, clear, and correct; both the commonwealth and the defendant were represented by skilled and careful counsel, who knew the case and noted every move, overlooking nothing, no matter how trivial; and the court watched the proceedings with a studious care. Defendant filed the following grounds for a new trial:
(a) Because the court erred in overruling the demurrer to the indictment against Johnson Berry.
(b) Because the court erred in overruling defendant's motion for continuance of this case till the next term of this court.
(c) Because the defendant did not receive a fair and impartial trial.
(d) Because the court erred in permitting the commonwealth to introduce illegal, irrelevant, and incompetent evidence.
(e) Because the court erred in refusing to admit legal, competent, and relevant evidence offered by the defendant.
(f) Because the verdict of the jury is clearly against both the law and the evidence.
(g) Because the verdict of the jury was reached as a result of prejudice and passion on its part.
(h) Because the court erred, at the conclusion of the evidence for the commonwealth in refusing, on motion of defendant, to give to the jury a peremptory instruction to find the defendant not guilty.
(i) Because the court erred in each instruction given to the jury, and the charge as a whole is erroneous.
(j) Because the court erred in not instructing the jury on the whole law of the case.
(k) Because the verdict is not sustained by the evidence.
( l) Because the verdict is palpably against the evidence.
(m) Because the court erred in permitting the commonwealth's attorney in his argument to the jury to use words and phrases that were improper, objectionable, and prejudicial in the extreme, which words and phrases were used to and did inflame the passion and prejudice of the jury.
(n) Because the court erred in failing and refusing to discharge the jury and continue the case, on motions of the defendant.
As a preface to our discussion of these, we deem it advisable to make a statement of the facts disclosed by the record.
Johnson Berry and his victim, Susie Berry, were married about 16 or 17 years before the tragedy. They were white people of respectable families, and both had been reared in Hopkins county. They had lived in or around the city of Madisonville for several years. They had two children, a girl 10 or 12 years old and a boy about 8.
When Johnson Berry was a small boy, he was struck on the head by a stone that had been thrown by a boy with whom he was playing. This gave him considerable trouble then. In the language of a witness, Some sort of operation was performed on him then. A portion of his skull was removed and a silver plate was put in.
About 3 years prior to the killing, while the defendant was working in a coal mine, he received some injuries to his arm and shoulder. He was taken to a hospital at Chicago, where he was for some time. A portion of this injured bone (the humerus) was removed, and a portion of a bone taken from one of his legs was inserted in lieu thereof. The defendant recovered, but from then on was a very nervous person.
He and his wife had had some trouble, had separated, and an adjustment was made of their property rights. Later they became reconciled and resumed their marital relations, but trouble came again, and on November 16, 1926, Susie Berry sued the defendant for divorce.
On November 20, 1926, the defendant was adjudged a lunatic by the Hopkins county court and sent to the asylum at Hopkinsville. He was released about the 20th of December thereafter, having been in the asylum practically one month. He returned to Madisonville, where he met his wife on Main street in front of one of the principal stores of the town, and had a conversation with her. During that conversation he drew a knife and began cutting his throat in an attempt to take his own life, but parties near them interfered and prevented his accomplishment of his purpose. He was carried to a hospital in Madisonville, where his wound was treated until it had healed sufficiently that he could be moved. Thereupon he was taken to the asylum again, and remained there until some time in April or May, 1927.
In February, 1927, Susie Berry was granted a divorce from defendant, and given the care and custody of the two children.
When Johnson Berry was released from the asylum in the spring of 1927, he first went to Illinois, and later to Evansville, Ind., where he made his home until the time of this killing. While he was in Evansville, he married another woman with whom he lived in that city.
Between May, 1927, and September, 1927, the defendant made several trips to Madisonville to see his children and also to see his former wife. He says that he loved his children and also loved his former wife, and it is apparent from this record that she loved him, and that these meetings with his wife were more than casual visits, as the evidence indicates their relations on those visits were improper, in view of the fact that they had been divorced.
The defendant seems to have been very much attached to his children. He was nervous, and continuously talking about his children and wanting to see them. According to the witnesses, "He was always crying and taking on about them."
It was also shown that even before he was adjudged a lunatic he had made an attempt to cut his throat, but parties present interfered, and that time he was not even partially successful.
He came to Madisonville from Evansville some 2 or 3 weeks before the killing and remained until this homicide at Madisonville and at Earlington, which is only four miles away, staying with his brothers and sisters.
Witnesses who saw him then described his nervous condition and the way he would talk about his children, and said, "He cried and took on about them." The evidence shows that during this time he met and talked to Susie Berry several times, and indicates that they did more than talk. The overwhelming weight of the evidence is that the defendant never uttered one word of ill feeling or unkindness against Susie Berry. However, there is some evidence of threats he had made which will be discussed later. It appears that he brought with him to Madisonville a shotgun, which he used in hunting, and for some time prior to this killing this gun had been at his brother Roy's house at Madisonville.
Several days before the killing he took the gun to the house of his brother at Earlington and kept it there. On Saturday night before the killing, he returned to Madisonville to the home of his brother Roy. Roy Berry and his wife described the nervous condition of the defendant on that Saturday night, and testified that "He cried and took on about his children, that he was up and down all night and smoked a number of cigarettes."
On the day of the killing he left their home early in the morning and went to Earlington, where he visited another of his brothers, but about the middle of the day he came back to Madisonville and brought with him this shotgun. He had taken it apart and had the breech of it in a suitcase and had the barrel part of it strapped to the outside of the suitcase.
He went to the home of his brother Lilburn Berry, where he put this gun together and stood it up behind the door, remarking that he was going to take the gun to his brother Roy's who lived in another part of Madisonville. The defendant was doing some writing, and, at the request of his sister or his sister-in-law, he went out on the front porch, where he continued his writing. As the ladies desired to take a bath, they pulled the screen door to, and fastened or latched it, and then closed the door. Presently the defendant came to the screen door and shook it and asked the ladies to unlatch it, and let him in, stating that Susie Berry was passing, and he did not want her to see him. It was shown that he had often made such requests before when she was passing, and nothing was thought of it. They opened the door and then went into another part of the house.
The defendant came in, got the gun, and ran out the front door. Susie Berry was at that time passing the house on the sidewalk a short distance away. Without saying a word, the defendant ran after her. Susie noticed him coming, and had partially turned toward him. He fired, and that shot took effect in the biceps muscle of her right arm. She said, "Oh my God." She staggered and fell toward him. She was apparently trying to pull herself up by the fence when he shot her again. This shot took effect in her left lower jaw and in her throat. From this wound she died a few hours later.
The defendant then reloaded the gun and walked to the corner of the house, where he fired it apparently in an effort to shoot himself. He then walked a short distance into the garden behind the house, and there shot himself in the back or side of the back of his...
To continue reading
Request your trial