Blackerby v. Commonwealth

• Court: Kentucky Court of Appeals
• Writing for the Court: CLAY, J.
• Citation: Blackerby v. Commonwealth, 200 Ky. 832, 255 S.W. 824 (Ky. Ct. App. 1923)
• Decision Date: 13 November 1923
• Parties: BLACKERBY v. COMMONWEALTH.

255 S.W. 824

200 Ky. 832

BLACKERBY v. COMMONWEALTH.

Court of Appeals of Kentucky.

November 13, 1923

Appeal from Circuit Court, Jefferson County, Criminal Branch Criminal Division.

C. L Blackerby was convicted of manslaughter, and he appeals. Reversed, and cause remanded for a new trial.

Sampson C.J., dissenting.

Jas. P Edwards and David R. Castleman, both of Louisville, for appellant.

T. B. McGregor, Atty. Gen., Lilburn Phelps, Asst. Atty. Gen., and Joseph S. Lawton, Commonwealth's Atty., and Frank M. Drake and W. Clarke Otte, Asst. Commonwealth's Attys., all of Louisville, for the Commonwealth.

CLAY J.

Appellant, who was indicted for the murder of C. E. Heavrin, was found guilty of manslaughter and his punishment fixed at confinement in the state reformatory for a period of 21 years.

The case, as presented by appellant, may be summarized as follows: Appellant and his wife had resided in Louisville for about 16 years. He was in the tobacco business, and up to within a short time of the homicide she was in charge of the linen department of Herman, Straus & Sons Company, and had accumulated an estate worth several thousand dollars. During the summer of 1922 they lived together in a small apartment on the south side of Fourth street. Up to that time they had lived together without serious friction, but in the month of October he and his wife had a disagreement, and during the discussion he agreed that she might have a divorce if she would stick to the truth and not seek alimony from him. After that, however, they continued to live together until a week later, when he came home and found her moving out of the apartment to another room in the same house. He claims that he tried to persuade her not to leave him, but to no avail. Later on, he was served with a summons in a divorce suit. He seems to have been worried because the petition not only asked for a divorce, but for all proper relief, and consulted a lawyer, who told him that this was the usual prayer in such cases. He not only tried to bring about a reconciliation, but went to the judge of the court in which the suit was pending and asked him to hold up the case during his efforts for a reconciliation. This the judge consented to do, although he had already decided to grant the divorce. However, he did not inform appellant of his decision. Appellant claims that at times he was encouraged in the hope that his wife would abandon her action, but in the end she always refused to make up. Because of this change in her attitude, he became convinced that some one was influencing her and finally decided to tap the telephone wire leading into her room. This he did about five days before the tragedy, and soon began to hear conversations between her and some man. During these conversations they addressed each other as "dearest" and "darling," made engagements to meet each other, discussed appellant as her "ex," talked of certain incidents that had taken place, and, in referring to one of them, she stated that if appellant had known of it, it would be, "Katie, bar the door," with the divorce suit. In one of these conversations she and the man discussed what appellant would do if he met the man. She said in substance that appellant would do no more than curse him, as he had done to another man who had shown her some attention several years before. The man to whom she was talking said that he was perfectly capable of taking care of himself and did not feel any uneasiness about meeting appellant. On Friday before the homicide, appellant placed in his overcoat pocket an automatic pistol which he found at his place of business in the desk of his partner. Having heard his wife and the man make an appointment to meet at the Seelbach Hotel on Friday night at 9 o'clock, he decided to go there. When he arrived, he saw the man and his wife together, and realized that he was a stranger. On Saturday he overheard his wife call a telephone number, and after investigation found the telephone called was in the office of Dr. C. E. Heavrin, a dentist, who had offices on Market street, not far from Herman, Straus & Sons Company. On Saturday afternoon he decided to go see Dr. Heavrin on the pretext of having his teeth cleaned. When he reached the office, it was locked, and he found no signs of life. He then started down the steps, and when about halfway down, the doctor came out of his office and asked to know his business. He told him that he was looking for Dr. Heavrin to clean his teeth. The doctor replied that he was Dr. Heavrin, but he had quit work for the day. At that time appellant had his pistol in his pocket, but made no effort to use it. That night he learned by means of the telephone that his wife was in the doctor's office when he called there, and stayed until just before 9 o'clock, when she went to Herman, Straus & Sons Company, where she was formerly employed, and arranged her hair. Numerous other conversations took place on Sunday, as well as on Monday, the day of the tragedy. About 2:30 Monday afternoon, he again went to Heavrin's office and found the door locked. Later on he went to a restaurant across the street and called Heavrin's office. His wife answered the phone, only to be followed immediately by Heavrin. Appellant stated that he wanted to have his teeth cleaned. Heavrin told him to come in half an hour. Appellant stationed himself in the restaurant across the street, where he had a full view of the building containing Heavrin's office. While there he saw the muslin curtains pulled apart, as though some one were looking out. Shortly thereafter, he saw his wife step out on Market street. With this he crossed the street and told her that he wanted her to go back to the doctor's office. She protested and refused to go. Catching hold of her arm, he placed her in front of him and proceeded up the steps. When they reached the top of the steps, Heavrin was standing in the hall on the left side of the door. Heavrin said, "What are you doing here?" Appellant replied, "I came up here to talk to you and my wife." With that Heavrin sprang at appellant, striking him in the breast. Appellant then put his hand in his overcoat pocket and took out his revolver for self-protection. Heavrin grabbed the pistol, and during the scuffle there was fired one shot which struck Heavrin and caused his death a few days later. It was further shown that the shell that was fired was not ejected, and that this could have resulted if Heavrin had grabbed the pistol and westled for it, as appellant claimed he did.

On the other hand, the commonwealth introduced the following dying declaration of the deceased:

"Two ladies were in my--office, and one started to pay her bill with a $20 bill, and that Mrs. Blackerby, who was there to have one of her teeth looked at, changed the money for them, and the lady that I--examined,--Mrs. Blackerby's tooth, after which she went down the steps, and only been gone a very short time, just long enough to reach the sidewalk, when I heard much noise on the steps and walked to the door. As I reached the door the man and Mrs. Blackerby were there, and the man said, ' I got you,' and shot me. I tried to get the gun, but I could not get it.

Question: Did you try to hurt or fight him? Answer: No."

This was followed by evidence showing the conduct of the parties after the homicide, and particularly the fact that appellant made no effort to call a physician, and admitted that he had shot the deceased.

Appellant was permitted to show that in a previous statement made by the deceased, but which was rejected as a dying declaration, he was asked and answered the following questions:

"Q. Did you have any controversy with him before he shot you? A. Yes, I made a grab for the gun, but it went off before I could wrestle it from him. Q. Then you scuffled with him. A. Yes."

Relying not only upon the evidence which he had introduced, but upon appellant's account of the tragedy, it was the contention of the commonwealth that appellant, acting from jealousy, deliberately armed himself and went to the office of Dr. Heavrin for the purpose of killing him and did kill him. On the other hand, it was the contention of appellant that he had seen Heavrin two or three times before the homicide and made no attempt to kill him, but on the occasion in question he went to Heavrin's office in company with his wife for the purpose of demanding an explanation; that when he stated his purpose to Heavrin, Heavrin struck him, and he then drew his pistol in self-protection; that Heavrin grabbed the pistol, and during the scuffle the pistol was accidentally discharged.

The principal ground urged for reversal was the refusal of the court to admit evidence of the relations which existed between Dr. Heavrin and Mrs. Blackerby. We need not repeat the offered evidence. It is sufficient to say that some of the evidence tended to show that the doctor and Mrs Blackerby were in love with each other, while other portions tended to show that an undue intimacy existed between them, and that the doctor was jealous of another man who knew Mrs. Blackerby. It is insisted that this evidence was properly rejected because none of it was ever communicated to appellant before the homicide. When evidence that the deceased maintained improper relations with the wife of the accused is offered by the commonwealth to show motive, or by the accused to support a plea of emotional insanity or to prove provocation, it becomes necessary to inquire whether or not the fact of intimacy was communicated to the accused before the homicide, for, unless communicated, it would not operate as a motive for his act or in any wise affect his mental condition. Shipp v. Com., 124 Ky. 643, 99 S.W. 945, 30 Ky. Law Rep. 904, 10 L.R.A. (N. S.)...