Brannon v. Commonwealth

• Decision Date: 27 January 1915
• Citation: 162 Ky. 350,172 S.W. 703
• Parties: BRANNON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

172 S.W. 703

162 Ky. 350

BRANNON v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 27, 1915

Appeal from Circuit Court, Bourbon County.

T. F Brannon was convicted of a criminal contempt of court, and he appeals. Affirmed.

Denis Dundon and John J. Williams, both of Paris, and Hazelrigg &amp Hazelrigg, of Frankfort, for appellant.

James Garnett, Atty. Gen., and Robt. T. Caldwell, Asst. Atty. Gen for the Commonwealth.

SETTLE J.

The appellant, T. F. Brannon, under a rule from the Bourbon circuit court, was tried by a jury and convicted of criminal contempt; his punishment being fixed by the verdict of the jury and judgment of the court at a fine of $1,000 and six months' imprisonment in the county jail. Following the return of the verdict, appellant filed motion and grounds for a new trial; the grounds being: (1) The acts proved did not constitute a contempt of court; (2) the court erred in instructing the jury; (3) the punishment was so excessive as to show that the jury were actuated by passion or prejudice in fixing it. The motion for a new trial was overruled. Thereafter, at the same term of the court, the appellant filed his own and other affidavits and moved the court to set aside the order overruling the motion for a new trial, and renewed the motion for a new trial, both of which motions the court overruled, to which ruling the appellant excepted. The latter, being dissatisfied with the judgment of conviction and the several rulings of the court referred to, has appealed.

The ruling of the court as to the supplemental motion for a new trial will first be disposed of. The affidavits filed in support of this motion stated, in substance, that one of the jurors had previous to the trial said in their presence "that he believed that the defendant should be given the limit." The juror by affidavit denied making the statement, or that he entertained prejudice toward appellant admitting, however, that he had inquired of a former commonwealth's attorney what punishment could be inflicted for criminal contempt, and was told by the latter that it was unlimited. It also appears from his affidavit that this admission, with the further statement that he had not made up his mind as to the guilt or innocence of appellant, was made by him when taken upon the jury, and that on appellant's trial he unavailingly exerted his influence with other members of the jury to reduce the punishment below that fixed by the verdict.

It is, however, insisted for appellant that so much of the juror's affidavit as related to his efforts to reduce the punishment inflicted by the verdict was incompetent, but we do not so regard it. The competency of such evidence was considered by us in Gleason v. Commonwealth, 145 Ky. 128, 140 S.W. 63, Ann. Cas. 1913B, 757. In the opinion it is said:

"By the affidavits of three persons filed in support of this ground (disqualification of a juror), it was stated that J. M. Morris, a member of the jury by which appellant was tried, expressed before the trial, and before he was accepted as a juror, the opinion that appellant was 'guilty of the murder of George Courtney and should be punished therefor by being hanged or sent to the penitentiary for life.' Morris gave an affidavit denying that he formed or expressed any opinion as to appellant's guilt or innocence before the trial. In addition, there were filed the affidavits of several members of the jury, from which it appeared that Morris, at no time during the trial, manifested any bias or prejudice against appellant, but that, on the contrary, he was largely instrumental in influencing several of the jury, who were in favor of finding appellant guilty of murder and punishing him accordingly, to agree to a verdict of voluntary manslaughter. We are of opinion that the affidavits of the other jurors were properly admitted as evidence on the charge of bias against Morris. The affidavit or oral testimony of juror will not be received to impeach a verdict or to impeach a fellow juror's conduct, but will be admitted in support of a verdict attempted to be impeached by other testimony, whether the juror's testimony goes to deny or explain * * * misconduct during retirement. We are aware that this doctrine does not meet with favor in some of the states, but we gave it our approval in Howard v. Commonwealth 24 Ky. Law Rep. 612, and have since adhered to it. In elaboration of this doctrine Mr. Wigmore, in his valuable work on Evidence (volume 4, § 2354, subsec. 4), says: 'Moreover, this object of disproving bias alleged to have existed before trial may be attained by showing expressions and conduct during retirement as an evidential fact relating back and negativing the supposed prior bias. But where the object is to determine the grounds or motives of the verdict as in themselves important for sustaining it (for example, to show that a certain illegal paper or erroneous charge did not influence the verdict) here the other principle (ante, § 2349) applies to forbid this. The distinction is that in the former case the juror's expressions are not considered in their aspect in establishing motives for the verdict, but merely as part of his whole conduct going to determine the question of his former bias.' 11 Am. & Eng. Ency. of Law, 1008."

If the conduct of the juror in attempting to influence the jury to inflict a lighter punishment than was awarded by the verdict could properly have been shown by the affidavit of other members of the jury, as held by the authorities, supra, it was clearly competent to show it, as was done in this case, by the affidavit of the juror himself. Under the circumstances, it was necessary for the trial court to determine whether the juror alleged to be biased was disqualified to such an extent as to impeach the verdict and give cause for setting it aside. The matter was one that addressed itself to the discretion of the court. Some weight must be given to the court's knowledge of the conduct of the juror during the trial and its acquaintance with the character of the juror and those of the three personal friends of appellant by whose affidavits his disqualification for service upon the jury was attempted to be shown; and the fact that the court accepted the statements contained in the juror's affidavit in preference to those contained in the affidavits of the three witnesses of appellant gives us no ground for holding that the ruling of the court on this point against appellant was error. In other words, we are unconvinced, by anything appearing in the record, that the ruling of the court in refusing to set aside the previous order overruling the motion for a new trial was an abuse of discretion, or prejudicial to the rights of appellant. McKee v. C., F. & S. R. Co., 161 Ky. 711, 171 S.W. 425.

Appellant's main contention that the acts for which he was convicted did not constitute contempt cannot prevail. To intelligently pass upon this contention, consideration of the evidence will be necessary. It appears that there were three indictments returned in the Bourbon circuit court against appellant, who was the keeper of a saloon, each charging him with an unlawful sale of liquor. C. P. Cook was an important witness for the commonwealth in each of the three cases referred to. Two of the cases had been tried, one of the trials resulting in appellant's acquittal and the other in his conviction; Cook being the principal witness against him in each of the cases. The third case was continued. The following excerpts from the testimony of Cook in the instant case will indicate the acts constituting the alleged contempt:

"Q. This rule charges Mr. Brannon with contempt of court for striking you after you had left the courtroom here. Just tell what those facts were, if he struck you, Mr. Cook, how it came up, and how long after the trial of this case was it? A. A very few minutes. I walked up street before the jury had brought in a verdict. After I testified I walked up street, and I stopped on the corner of Seventh and Main to talk to Mrs. Sims Wilson. She stopped me and asked me about a certain matter. I have forgotten what it was now--perhaps an order--and just as I started to walk on to get on the other side of the street--Seventh street, going up--Mr. Brannon came diagonally across the street. I turned and saw him. He was almost to me; and he says, 'God damn you, I ought to whip you, and I am going to do it.' And with that he struck me on the jaw here, and then he struck me here, and knocked me down and kicked me twice. Q. Where did he kick you? A. Kicked me in the back. * * * A. As soon as I got up, he shook his fist in my face, any says, 'God damn you, I am going to give you this every time that I meet you.' * * * A. When he first struck me he said, 'You God damned s____ of a b____, I ought to whip you, and I'm going to do it.' Q. What did you do? A. Nothing whatever. And said nothing. * * * Q. Did you or not have an opportunity to defend yourself before he struck you? A. No, sir; he struck me just as he said--he says, 'You God damned s____ of a b____, I ought to whip you, and I am going to;' and with that he struck me." With respect to this transaction, appellant testified as follows:

"Q. Now, tell just how you met Mr. Cook there at the corner of Seventh and Main streets, and what was said between you there, and what was done? A. Well, I was going up on the west side of Main street, from the court here. When I left the courthouse I went up Main street on the west side until I got to Seventh street. My place is on the opposite side of the street, and I was crossing over and I met--I never saw Mr. Cook until I run right into him between Seventh street, between the two corners. Q. You mean on the north side or the south side of Seventh

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