Bircham v. Com.

• Decision Date: 06 February 1951
• Citation: 238 S.W.2d 1008
• Parties: BIRCHAM v. COMMONWEALTH.
• Court: United States State Supreme Court — District of Kentucky

Page 1008

238 S.W.2d 1008

BIRCHAM v. COMMONWEALTH.

Court of Appeals of Kentucky.

Feb. 6, 1951.

Rehearing Denied May 17, 1951.

Rodes K. Myers, Leland H. Logan, Bowling Green, and Robert Zollinger, Louisville, for appellant.

A. E. Funk, Atty. Gen., John B. Browning, Asst. Atty. Gen., for appellee.

VAN SANT, Commissioner.

Appellant and his wife, in a Packard automobile, were passing through a small city (not otherwise identified) a few miles south of Louisville on the evening of August 14, 1949. Appellant was fleeing from the state of Kansas to avoid confinement after conviction for the crime of robbery. His wife was fleeing from the state of Alabama to avoid prosecution in the United States Courts for harboring her husband. They knew that agents of the Federal Bureau of Investigation were looking for them, if not in actual pursuit. They had intended to stop at the home of a friend in the small city, but drove on when they observed a black Ford which they thought was occupied by agents of the Federal Bureau of Investigation. They arrived in Louisville at about 9:00 o'clock p. m. laboring under the apprehension that peace officers of that city and of the government had been alerted to their expected visit. In their excitement, they turned north on First Street, failing to observe that it was zoned and marked for southbound traffic only. City patrolmen John Tennyson and John A. Ross, in a police cruiser, overtook them and ordered them to pull to the curb. Thinking they were about to be arrested as fugitives of justice, they rapidly drove on to avoid capture. The officers gave chase, firing five shots either at them or into the air. The race ended when the pursued driver lost control of his car and hit a telephone pole. Still thinking he was facing arrest as a fugitive, appellant fled on foot carrying a revolver in each hand. The officers attempted to pocket him behind a house: Tennyson proceeding to the rear and Ross to the front. Bircham ran from behind the house into a driveway between the house and the adjacent property. Tennyson and Ross cross-fired at him, one bullet nicking him in the ear. Bircham fired his revolvers several times after that, but didn't know whether he struck the officers or not. The above statement of facts was testified to by appellant at the trial.

Ross related the same sequence of events with few exceptions, which we now will notice. He testified that when he and Tennyson drove alongside the Packard, they recognized Bircham as a fugitive from justice wanted by the Federal Bureau of Investigation, from his picture appearing on a poster reposing on the bulletin board at Police Headquarters. They then announced to Bircham that he was under arrest, immediately following which Bircham drove on at high speed. Ross further contradicted Bircham by testifying that while he (Ross) was in front of the house he heard several shots being fired in the rear, two of which struck, and one of which killed, Tennyson. He said that between the first and second houses he came face to face with Bircham who rounded the front of the second house and ran between it and a third house. Ross followed. When Bircham again came into view he raised his hands and announced 'I give up'; but he immediately started shooting, inflicting six wounds in Ross's body. Ross then fired the single cartridge left in his revolver, after which he threw his revolver at Bircham. Ross further testified that previous to Tennyson's death, all shots fired by the police were directed into the air, but we think this not to be material.

After Ross was wounded, Bircham continued his flight, finally arriving, and tripping over a fence, in the yard of Luther Williams, whose attention had been aroused by the barking of a neighbor's dog. Williams approached Bircham to determine the trouble whereupon the latter pointed both weapons at Williams's face and demanded the keys to his car, simultaneously squeezing the triggers of both his revolvers. The weapons failed to fire, whereupon Bircham ordered Williams into the house following him with the guns to his back. Bircham again pulled the triggers and the revolvers again misfired. Williams then turned, took hold of the revolvers by their barrels, shoved Bircham down the steps, grappled with, captured, and held him until help arrived. The prisoner was then placed in the custody of officers who took him to Police Headquarters. He was later indicted, tried, convicted, and sentenced to death in the electric chair for the murder of Tennyson. We will discuss other evidence introduced at the trial as it becomes necessary to the disposition of the various grounds assigned by appellant for reversal of the judgment.

The homicide occurred on the 14th day of August, 1949, and an indictment charging appellant with the murder of Tennyson was returned by a specially convened grand jury on the 29th day of August. Appellant was arraigned on that indictment, demurred thereto, filed motion to set it aside, and entered a plea of not guilty. The demurrer and motion to set aside the indictment were overruled and the case was assigned to September 29, 1949 for trial. Appellant then moved the court for a change of venue.

In the meantime, to-wit; on or before September 20, the regular grand jury impaneled for the September Term of court returned another indictment charging appellant with the murder of Tennyson. Appellant was arraigned on this indictment, demurred thereto, filed a motion to set it aside, again moved for a change of venue, and entered a plea of not guilty. The demurrer and motion to set aside the indictment were overruled forthwith; the motion for change of venue was overruled, upon condition it again would be considered if examination of the jury panel developed cause therefor. On call of the case on September 29, it was reassigned to October 11, 1949 for trial.

Appellant insists the court erred in overruling his motion to set aside the indictment because (1) no emergency existed to justify the court in vacation to impanel a special grand jury, and (2) no competent testimony or evidence was heard or viewed by either grand jury.

Since appellant was not tried on the indictment returned by the special grand jury, the first complaint may not be entertained. The second indictment shows on its face that all material witnesses, except experts introduced by the Commonwealth at the trial, were witnesses before the grand jury which returned the indictment pursuant to which appellant was tried. Irrespective of any rule which may obtain in other jurisdictions, our rule of long standing prevails in a majority of states, and is: Section 107 of the Criminal Code of Practice, providing that the grand jury can receive none but legal evidence, is directed to the grand jury and not to the courts, for which reason the court will not inquire into the legality or sufficiency of the evidence on which an indictment is based even if it is averred that no legal evidence was produced before the grand jury. McIntire v. Commonwealth, 4 S.W. 1, 26 Ky.Law Rep. 469; Commonwealth v. Minor et al., 89 Ky. 555, 13 S.W. 5, 11 Ky. Law Rep. 775; State v. Chance, 29 N.M. 34, 221 P. 183, 31 A.L.R. 1466, Annotation 1479; Annotation 27 American Jurisprudence, Indictments & Information, Section 166.

The evidence heard on the motion for a change of venue was conflicting and examination of prospective jurors did not establish that appellant could not obtain a fair trial in Jefferson County. The trial court has wide discretion in determining whether a motion for a change of venue should be sustained or overruled, and we have never been disposed to declare that he has abused this discretion merely because of a conflict of opinions among witnesses introduced on the motion.

Appellant complains of the conduct of the Commonwealth's Attorney in his voir dire examination of the jury. The Commonwealth's Attorney made frequent and continuous statements to individuals he examined in the presence of other prospective jurors to the effect that the Commonwealth would not be satisfied with any verdict which did not inflict the death penalty. He likewise told them that, irrespective of what they had heard and said previously, they were qualified to sit as jurors if they could decide the case solely on the sworn testimony introduced at the trial. He additionally told them on their examination that there would be no doubt in their minds about the guilt of the accused.

In his opening statement as well as in his closing argument, every statement complained of was available to the Commonwealth's Attorney. He made no misstatement either of law or fact and, although he should have waited until the trial commenced to tell the jury that there would be no doubt in their minds that the defendant was guilty, we believe that his earlier statement to this effect could not have had the effect of operating to appellant's prejudice in this case. We are assured of this fact because as we hereinafter will point out, appellant's own testimony was sufficient to convict him of murder and was insufficient to establish any justification whatever for the crime.

Appellant contends that the judgment should be reversed because of error on the part of the court in permitting the Commonwealth, on cross-examination of appellant, to prove that he had been convicted of bank robbery in the state of Tennessee in the year 1931, under the alias of John Wallace; that he was convicted of first degree robbery in Kansas in the year 1941; and that he had used fictitious names from time to time in various sections of the country. It is contended that, since the testimony anent the convictions in Kansas and Tennessee concerned other crimes and had no connection with the crime for which appellant was being tried, it was incompetent and highly prejudicial. The evidence was competent, under the admonition which was given by the court that it could be considered only for the purpose of affecting d...