Bishop v. Commonwealth

• Decision Date: 09 January 1901
• Citation: 109 Ky. 558
• Parties: Bishop v. Commonwealth.
• Court: Kentucky Court of Appeals

Page 558

109 Ky. 558

Bishop v. Commonwealth.

Court of Appeals of Kentucky.

January 9, 1901.

APPEAL FROM KENTON CIRCUIT COURT.

PETITION FOR REHEARING GRANTED, AND REVERSED. FOR FORMER OPINION SEE 58 S. W. REP., 817.

RARDIN & RARDIN, H. D. GREGORY, AND JOHN B. O'NEAL, ATTORNEYS FOR APPELLANT.

ROBT. J. BRECKINRIDGE, FOR THE COMMONWEALTH.

OPINION OF THE COURT BY JUDGE Du RELLE — REVERSING.

Appellant, Bishop, with one Thomas Lyons, was indicted for the murder of William McQuery on the 8th day of June, 1900. Appellant, it seems, had gone from Cincinnati to a place called the "Hobo Camp," near the "Lagoon," at Ludlow, on the 5th day of June, and he claims to have gotten into a difficulty with some tramps who were camping there, and to have been driven away. On the afternoon of the 8th he returned to Ludlow from Cincinnati with Lyons, as he says, for the purpose of taking a train for Louisville. On that day it appears that an unknown man was killed at the "hobo" camp, and the evidence tended to show that both appellant and Lyons were engaged in the killing. Such evidence as was introduced shows this homicide to have been committed under circumstances of peculiar atrocity; that the unknown was lying asleep, with his hat over his face; that one of the two men indicted lifted the hat from the face of the sleeper, replaced it, shot him, and thereupon the other fired three shots into the victim. Thereupon the two proceeded, according to Bishop's evidence, to a saloon, where they got a drink, and hailed a street car for Cincinnati. The conductor refused to stop, as it was midway of a square; but the two men boarded it while in motion, and took seats. About 5 o'clock the car reached the Covington end of the suspension bridge connecting Covington with Cincinnati. In the meantime information had been telephoned to the Covington police headquarters that a man had been killed near the "Lagoon," and that the two men who killed him would probably attempt to cross to Cincinnati by the suspension bridge. A description of them was given by telephone. Accordingly, McQuery, who was a police officer, was informed of the substance of the telephone message, and directed to go to the bridge, and, if possible, arrest the men. He stopped the car at the south end of the bridge, and had a conversation with the men. The testimony does not show all of that conversation, as most of it was in an undertone, and not heard by the other passengers. It does show that McQuery desired the two men to go with him to the chief's office, or uptown, and that, after some conference among themselves, they agreed to go with him and see what he wanted. McQuery went out first. At the rear door of the car he turned, and Bishop, who had drawn his pistol as he rose from his seat, fired, the shot taking effect in the abdomen. The officer was in full uniform of a policeman — helmet, shield, baton, blue clothes, and brass buttons. McQuery, after being shot, seems to have drawn his revolver, and fired it two or three times during a struggle with appellant and Lyons, in which they succeeded in wresting it from him. They then started across the bridge, but seem to have been passed by the street car on which the difficulty occurred. As the car passed, they covered it with their revolvers, but made no effort to stop it. Fearing, possibly, that he would be stopped at the north end of the bridge, appellant leaped from the bridge into the river below, a distance of some 90 feet, and swam to the Kentucky shore, where he was arrested, with a revolver in his hand.

On appeal from the judgment of conviction it is urged that it was error to summon a special grand jury from bystanders, the entire grand jury having been discharged on account of smallpox in the family of one of the jurors. Kentucky Statutes, section 2247. Lyons filed a motion to set aside the indictment upon this ground, but the record does not show that appellant made any motion or took any action objecting to this procedure. It is now too late to do so.

Appellant filed a petition for a change of venue, supported by the affidavits of two persons, one of whom appears by the record to have been a citizen of Ohio. Under the cases of Higgins v. Commonwealth, 94 Ky., 54; (21 S. W., 231), and Draughan v. Same (Ky.), (45 S. W., 367), construing what is now section 1110, Kentucky Statutes, a prima facie case was made out by the petition and affidavits. It is earnestly and very plausibly argued by appellant that the fact that one of the witnesses was a citizen of another State should not be held to prevent the use of his affidavit in support of such a petition. The marked difference between the statute applicable to changes of venue in civil cases (section 1096) from that with reference to criminal cases (section 1110) lends strong support to this contention, for the former section requires that the petition shall be "supported by the affidavits of at least two credible housekeepers of the county in which the action is pending," while the section as to criminal cases requires only the production and filing of "the affidavits of at least two other credible persons, not of kin nor of counsel for the defendant;" from which it may be argued that the lawmakers had in mind a case in which public feeling against a defendant might be so high as to prevent residents of the county being willing to make such affidavits. But it is not necessary to decide that question. No notice of the application, in writing or otherwise, was given the attorney for the Commonwealth or the county attorney. It is urged that the attorney for the Commonwealth was present when the application was filed, and might have applied for time in which to produce evidence upon the question whether appellant could obtain a far trial in Kenton county. We do not undertake to determine whether an objection on behalf of the Commonwealth not specifically limited to the ground of want of notice would be construed as an entry of appearance by the Commonwealth to the application for change of venue, but in this case nothing appears to show that the Commonwealth waived its right to notice. Without notice, or a waiver of it, the Commonwealth was not required to pay any attention to the application; and while the affidavits would, if properly presented to the court, make a prima facie case for change of venue — and the court's order of removal of appellant under guard to Louisville for safety strongly corroborates the claim of the application — it was not presented in such form as to be available. The refusal to grant a continuance, urged as ground for reversal, does not seem to us sufficient. The affidavit filed states in general terms the existence of witnesses in various parts of the country, but does not indicate what could be proved by them; and we can not say that the fact that counsel had been employed only nine days before trial rendered the refusal of the court to grant a continuance an abuse of judicial discretion in that behalf.

Nor can we perceive any error in the rulings of the court as to the evidence of the two doctors introduced by the defense. The court excluded entirely the evidence of one of the physicians, and refused to permit the other to answer a question in regard to a hypothetical case. Neither doctor qualified as an expert upon the subject of insanity. Each was asked if he had any experience in the treatment of persons suffering from excessive smoking of cigarettes or drinking of whisky, and responded in the affirmative. For all that appears in this record, neither of them had ever seen an insane person Moreover, had the medical witnesses been qualified as experts upon the subject, we think the same rule should be applied to expert testimony based solely upon a supposed case of previous habits which might tend to produce mental unsoundness as is applied to the introduction of testimony showing an ancestral taint as a fact tending to produce the same result, viz. that it can not be introduced in the absence of other independent testimony to show that the defendant was himself insane at the time of the killing. Murphy v. Commonwealth, 92 Ky., 485; (18 S. W., 163). Nor is there anything in the circumstances of the killing itself to indicate insanity, so as to lay a foundation for the introduction of testimony as to hereditary taint, or as to the effect which previous habits of the appellant might have in producing mental aberration. A sufficient motive for the killing — i. e. the desire of escape — was shown to exist. There was no evidence of insanity at the time of the killing; not even in the testimony of appellant himself, who testifies as to his previous habits of drinking and cigarette smoking, and says: "I was very much excited. My leg pained me so. In fact, my mind was dazed from drink. I don't thoroughly well recollect what it was. I know there was an officer came in and a gun pulled. I was frightened. I really could not tell just what did happen." This is not evidence of insanity, and we think, therefore, it was not error for the court to refuse an instruction upon insanity.

In arguing the case to the jury the Commonwealth's attorney referred to the appellant as a murderer and an assassin. Whether he was a murderer and an assassin was the very question which was on trial, and we do not consider it improper for the district attorney, in the course of his argument, to make a statement to the jury which amounted to nothing more or less than an expression of his opinion that defendant was guilty. Attorneys for the Commonwealth do sometimes, in argument, travel outside of the record, and make unjustifiable and inflammatory appeals to the passions of juries. In proper cases this court has not been slow in condemnation of such practices. But it does not seem improper for the prosecutor in a case of murder to state in argument to the jury that the defendant is guilty of murder. It may be, as suggested by the defense, that instructions...