Blackburn v. Commonwealth
| Decision Date | 12 May 1876 |
| Citation | 75 Ky. 181 |
| Parties | Blackburn v. Commonwealth. |
| Court | Kentucky Court of Appeals |
APPEAL FROM BALLARD CIRCUIT COURT.
BULLOCK & BULLOCK, For Appellant.
THOS. E. Moss, Attorney General, For Appellee.
JUDGE COFER DELIVERED THE OPINION OF THE COURT.
Having been convicted of the crime of mule-stealing, and sentenced to confinement in the penitentiary for a period of three years, the appellant, Lee Blackburn, has appealed to this court to obtain a reversal of that judgment.
It will be necessary, in order to obtain a clear understanding of the questions to be decided, to make a somewhat extended statement of the evidence introduced on the trial.
The commonwealth introduced Robert Nevill, who proved that he was the owner of the mule alleged to have been stolen, and that he allowed his son William to ride him to church in the country on a Sunday night in August, 1874.
William swore that he rode the animal to church, and hitched it near by, and went into the house, where he remained during service, and that when he came out the mule was gone.
James Trainer swore that one Holden, John Goodson, and himself were together at his (witness's) house on the morning of the day preceding the night on which the mule was stolen; that Lee Blackburn was also there, and he and the witness went to the house of Mike Blackburn, the father of Lee, to get him to come over; that the three (Mike and Lee Blackburn and the witness) returned together, and met Holden and Goodson at a certain mulberry tree in the field; that Holden and Goodson told Mike Blackburn that they wanted some horses; that Mike said there would be a good chance at the church that night, as horses would be there ready saddled and bridled. He said that if he went to get the horses he might be suspected, as he but seldom went to church, but that Trainer could go. Witness said he could not leave home, as his wife was sick; that Mike Blackburn then said he would send Lee, and then they separated; that on the next day, in the forenoon, Lee Blackburn was at his house, and told him and his wife that he got a mule for Holden and a horse for Goodson; that Holden was such a ______ coward that he was afraid to get on the mule, and that he (Blackburn) had to take the mule out for him; that Goodson had thrown a rock or something else on the top of the church, and that he then went out to them.
Trainer's wife was also sworn, and made a similar statement as to what the appellant stated on the next morning at Trainer's house.
John Goodson was also introduced by the commonwealth, and stated that Holden and himself had a place of concealment in a field belonging to Mike Blackburn, and that they staid at night at the house of Trainer, who fed and lodged them. He also stated that on the day before the mule was stolen, at night, Mike and Lee Blackburn came to the place where he and Holden were; that there was no agreement or arrangement with either Mike or Lee that Lee was to show them any horses that night; that he (witness) was at the church, and saw the mule in Holden's possession, but did not see him get it; that he did not see Lee Blackburn at the church or any where else that night, and so far as he knew Blackburn had nothing to do in stealing the mule. He then, in answer to a question propounded by the attorney for the commonwealth, stated that he might have testified before the grand jury that he and Holden were to hide out, and Lee Blackburn was to bring the stolen stock to them; and that he might have said something of the same nature to William Moseby.
To this question and the answer thereto the appellant objected; but his objection was overruled, and he excepted.
Whether this ruling was correct is the first question for decision.
The learned counsel argue that, having introduced the witness, the commonwealth indorsed him as truthful and credible, and that after he "had given in evidence such statements as certainly acquitted the prisoner" the commonwealth should not have been permitted to discredit him by proving that he had made contradictory statements on other occasions, thereby destroying all faith in his testimony.
Prior to the adoption of the Codes of Practice a party who was surprised by the testimony of his own witness could only contradict him by proving that the facts were otherwise than as stated by him. (Champ v. Commonwealth, 2 Met. 24.)
Section 660 of the Civil Code, which, as decided by this court in the case supra, is made applicable to criminal cases, has changed the common-law rule on this subject.
By the provisions of that section "the party producing a witness is not allowed to impeach his credit by evidence of bad character, unless it is a case in which it was indispensable that the party should produce him; but he may contradict him by other evidence, and by showing that he has made statements different from his present testimony. And in Champ's case it was held that "the obvious meaning of the rule is that where a witness states a fact prejudicial to the party calling him, the latter may be allowed to show that such fact does not exist, by proving that the witness had made statements to others inconsistent with his present testimony."
Applying the doctrine there announced to the facts of this case, we incline to the opinion that the court did not err in allowing the evidence objected to to go to the jury.
The commonwealth offered evidence to prove that the prisoner was present at a conference between Holden, Goodson Mike Blackburn, and Trainer, at which it was agreed that the prisoner should go to the church, and get, or aid in getting, the stock, and that he had actually done so; and that evidence also tended to prove that Goodson knew that the prisoner was at the conference and also at the church.
Goodson's testimony that no such agreement or arrangement was made, and that if the prisoner was at the church, or had any thing to do with stealing the mule, he did not know it, was prejudicial to the commonwealth, because it contradicted Trainer. If Trainer swore the truth, Goodson knew that it was understood at the conference in the field that the prisoner was to go to the church at night and show the horses. If Goodson swore the truth, Trainer certainly did not, for Trainer says Goodson was present when the conference took place and the arrangement was made.
The evidence of Trainer and Goodson showed that Goodson and Holden were both horse-thieves, and that they and Trainer and Mike Blackburn and the prisoner were all in conference on some subject during the day. Trainer tells what that conference was about and what it resulted in. Holden and Goodson being thus shown in conference with the two Blackburns and Trainer, and it being shown by Goodson that he and Holden were at the church that night and got a mule and horse, it appeared that Goodson had an opportunity to know whether the prisoner was there or not. He swore that if he was there, or had any thing to do with stealing the mule, he did not know it. Trainer and his wife both swore that the prisoner said he was there, and helped to steal the mule. The direct tendency of Goodson's statement, therefore, was to prove that the prisoner was not at the church and did not aid in stealing the mule. This contradicted both Trainer and his wife. It tended to show that the prisoner was not there, and therefore either that he made no such statement as that testified to by Trainer and his wife, or that he made to them a false statement.
It is thus shown clearly, as we think, that Goodson testified to facts prejudicial to the commonwealth, and that evidence of what he swore before the grand jury and of what he told to Moseby was admissible under the rule laid down in Champ's case.
2. The next objection urged to the rulings of the court is that there was error in refusing to give certain instructions asked by the counsel for the prisoner.
Several instructions were asked and refused, but only two of the number are insisted upon here. The first of these reads...
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