O'Brien v. Commonwealth

• Decision Date: 05 December 1889
• Citation: 89 Ky. 354
• Parties: O'Brien v. Commonwealth.
• Court: Kentucky Court of Appeals

89 Ky. 354

O'Brien v. Commonwealth.

Court of Appeals of Kentucky.

December 5, 1889.

APPEAL FROM FAYETTE CIRCUIT COURT.

COPYRIGHT MATERIAL OMITTED

WATTS PARKER, E. P. FARRELL FOR APPELLANT.

JAMES H. MULLIGAN OF COUNSEL ON SAME SIDE.

P. W. HARDIN, ATTORNEY-GENERAL, AND CHARLES J. BRONSTON FOR APPELLEE.

JUDGE HOLT DELIVERED THE OPINION OF THE COURT.

Bettie Shea was a servant girl of good character. She occupied a room over the kitchen, while the family of her employer slept in a remote part of the house. She was last seen alive by them upon the afternoon of Sunday, March 31, 1889. Early the next morning they found her dead body lying upon the floor of her room, partially disrobed, as if she were about retiring when cruel and murderous blows, one upon the other, and, from appearances, from six to fifteen in number, made with some blunt instrument, crushed in her skull, and made some one the murderer of a helpless woman.

We may presume at the outset that the killing was not for gain, as nothing of value was taken. She doubtless had little to tempt in this direction.

It was done between eight o'clock at night and four o'clock of the next morning. The mantle of darkness hid the doer. Under its cover a deed of blood was done so horrifying in character as to be almost nameless. As the witches said to Macbeth of King Duncan's murder — "a deed without a name."

The family heard no noise, and knew nothing of it until morning. This is accounted for by the fact that the room of the victim was isolated, the entrance to it being by a side door. Moreover, the wind and storm prevailing made it a fit night for such a deed.

The appellant, Thomas O'Brien, Jr., has been found guilty of it, and his punishment fixed at death. The evidence is altogether circumstantial, but a jury of his vicinage has passed upon it, and found he did it beyond a reasonable doubt. In our opinion it points unmistakably to him, and fully sustains the verdict. Moreover, his motive is clearly shown, and a careful reading of the record is not only convincing of his guilt, but points in no degree, even to the extent of suspicion, to any other person as the guilty party.

The deceased was not only his third cousin, but his wife. They had been secretly married under assumed names in October, 1888, and at the time of her death she was enceinte by him. He had been in the habit of privately visiting her as her husband from the time of their marriage, but it had been kept a secret. In the meantime he had not only become intimate with a prostitute, but had engaged himself to marry an Indiana girl in May, 1889.

When the deceased was killed, the appellant knew from her condition that their marriage could not be much longer concealed. He also knew that the time when he had promised to marry the Indiana girl was fast approaching. He may also have thought that publicity of his marriage, and which, he testifies, he believed to be valid, might interfere with his relations with the prostitute. Reason existed, therefore, why he should desire to rid himself of the deceased. Motive was not wanting.

Before his marriage, and in June, 1888, he told one party that he was courting a girl, and she would not submit to his desires. In January following he told the same person that the girl was with child by him, and asked how to get rid of it, saying he had to do so or marry the girl, and he did not intend to do the latter if he had to get rid of both. He also told another party of the girl's condition, and that he wished to get rid of the child. In February he applied to a physician for this purpose, telling him that the girl was the deceased, but a few days afterward told him that she did not claim he was the father, and he was going to let it rest. In the pocket of the dress which the deceased had evidently worn the day preceding her death was found an undated note from the appellant, saying: "Will be up tonight as soon as possible." He was arrested the day succeeding the killing, and upon the next day there was found in a bureau drawer in the room where he had been arrested a metallic knuck, calculated to make such wounds as were found upon the head of the deceased, if one could be found cruel enough to do so. There was a red shade upon it, but no microscopical examination was had to determine certainly whether it was blood or other substance.

A witness says she saw the appellant talking with a woman at the gate of the house where the deceased lived at about eight o'clock upon the night of the killing. She did not know the woman, but from her description of her dress, it was the deceased. Two witnesses testify that the appellant said, when told upon the day of his arrest that it was for killing Bettie Shea, "I was with the girl last night, but I did not do it."

These, and other circumstances to which we might allude, banish all doubt of the appellant's guilt. His evidence as to an alibi is faulty. He fails to account, by any witness whatever, where he was for at least an hour upon the night of the killing. This would have afforded him ample opportunity to have done it. Moreover, allowing that all of his witnesses are credible, yet they can very readily be mistaken as to the time when and for how long they saw him upon the fatal night.

It matters not, however, how guilty the appellant may be, nor how great the crime, he is still entitled to a trial according to law. His life can not be otherwise taken. It is one of the highest and most sacred duties of this court to see that every person charged with crime, however heinous, is thus tried, although by so doing it may subject itself, for the time being at least, to public censure and popular disapproval. Any other course would endanger the life and liberty of every one; bring discord and anarchy, and destroy that confidence with which the citizen appeals to the judiciary, even in times of popular excitement and violence, for the protection of his rights. We deem it unnecessary to notice all the grounds relied upon for a reversal.

Upon the hearing of the motion for a continuance, the State consented that the statement contained in the affidavit of what an absent witness, if present, would prove, might be taken as true, and so read to the jury. It was decided by this court, in Pace v. Commonwealth, ante, 204, that this was all a defendant could demand.

The appellant can not rely in this court upon any error of the lower court in acting upon a challenge to a juror for cause. Section 281 of the Criminal Code forbids it.

Complaint is made that the attorney for the Commonwealth, in his opening statement to the jury, said, in substance, that neither the accused nor his counsel opened their mouths at the examining trial to tell who did kill Bettie Shea, if the accused did not, meaning, as is claimed, that the appellant did not then testify. We hardly think the statement admits of this construction; but, in any event, the court expressly excluded its consideration in this light by the jury.

The attorney, in his opening statement, also read to the jury some notes written by the...