Cavanaugh v. Commonwealth

• Decision Date: 15 December 1916
• Citation: 172 Ky. 799
• Parties: Cavanaugh v. Commonwealth.
• Court: Kentucky Court of Appeals

172 Ky. 799

Cavanaugh v. Commonwealth.

Court of Appeals of Kentucky.

Decided December 15, 1916.

Appeal from Hopkins Circuit Court.

COPYRIGHT MATERIAL OMITTED

COX & GRAYOT for appellant.

M. M. LOGAN, Attorney General, and O. S. HOGAN, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE SETTLE — Affirming.

The appellant, B. Frank Cavanaugh, was tried and convicted in the court below under an indictment charging him with the crime of willful murder, committed by shooting and killing Leonard Griffin, March 30, 1916, his punishment being fixed by the verdict of the jury and judgment of the court at confinement in the penitentiary for life. He was refused a new trial by the circuit court and has appealed. Six grounds are urged in the brief of his counsel for the reversal of the judgment: (1) The evidence of the Commonwealth was not sufficient to sustain the verdict; (2) error in the instructions given by the court; (3) error of the court in refusing to allow appellant to testify that he shot deceased to protect himself from great bodily harm or death; (4) error of the court in refusing to allow the general moral character of Humphrey Hawkins, witness for the Commonwealth, to be impeached; (5) misconduct of the Commonwealth's attorney in argument to the jury; (6) error of the court in admitting in evidence the dying declaration of the deceased.

Response to the first complaint requires consideration of the evidence, which was, in brief, as follows: The appellant, Joe Collins, Charlie Wallace and the deceased all met at a house conducted by one Boyd Cates in the outskirts of Slaughtersville, Hopkins county, at which a drink known as "nutra malt" was sold. The parties remained there about two hours and during that time took several drinks, treats being given by appellant, Collins and the deceased. The witnesses, other than appellant and one Will Reynolds, introduced in his behalf, testified that they saw nothing unusual in the conduct of the parties while in Cates' house, except that they were hilarious from drink and all more or less intoxicated. It is true several of the witnesses testified that at one time, while they were in Gates' house the deceased attempted to step in the rear of appellant and was ordered by him not to get behind him, to which deceased replied, "All right," and walked away. The good humor of the assembly is shown by the fact that just before they left the house appellant indulged in a song. It was, however, testified by appellant that while in the Cates house Joe Collins had a pistol in his hip pocket, upon which he placed his hand and advanced toward appellant when the latter refused to promise him that he would attend his (Collins') trial in the police court the next day to answer a charge of drunkenness for which he had been arrested the previous afternoon, and at the same time Wallace had a knife in his hand and deceased a knife in his pocket which appellant claimed to have seen him open and place there; that the three persons named were attempting to close in on him, but stepped back when he ordered them to do so. None of these belligerent manifestations mentioned by appellant were seen by the other witnesses except Will Reynolds, who testified that he saw the knife in the hands of Wallace and that Collins had one hand in his pocket, but that as they were advancing toward appellant he said, "I am not going to stand anything like that; you fellows will have to stand back;" that they did stand back and appellant thereupon commenced to sing. According to all the witnesses the parties all went out of the house and returned once or twice before they finally took their departure; that at the end of two hours Cates announced he would have to close the house and go home, by which time Collins, Wallace and deceased were so drunk that they were barely able to keep their feet. When Cates announced his purpose to close, all the persons present left the house. According to appellant's testimony, when he, Wallace, Collins and deceased got out of the house they attempted to get around him as in the house and he told them good night and walked away and was followed by deceased and Wallace, whereupon he asked them what they wanted, to which they made no answer but kept coming toward him; that he told them to stop and Wallace did stop but deceased kept advancing with a knife in his hand, and that when deceased failed to stop after being told by him to do so, he shot twice, one of which shots struck deceased in the stomach and perforated his bowels, causing his death the following day in, or on his way to, an Evansville hospital to submit to a surgical operation for relief from his wound.

The foregoing testimony of appellant was, however, contradicted by that of Collins, Wallace, Hawkins, Crowley Pleasant and Whit Ashby, whose testimony, particularly that of Pleasant and Hawkins, was most damaging to appellant. Pleasant, among other things testified that he heard some cursing just before the shooting began; that appellant was cursing deceased and he heard him say to deceased, "God damn you, tell me good night," that deceased did tell him good night and appellant then said to him, "I'll tell you in a way, God damn you, you'll never forget," immediately after which the shots were fired, seven altogether, after five of which were fired Pleasant heard someone that he took to be Wallace say, "Now you have killed him. Now, God damn you, kill me," to which the voice that he took to be appellant's replied, "Just as you say, not as I give a damn," and two more shots were fired. Shortly after the shooting appellant came back by the hotel where the witness saw him as he passed. Wallace, who was at the place of the shooting, corroborated the testimony of Pleasant. According to the testimony of Roy Brown, appellant, shortly after the shooting, made of him the inquiry, "Is he (meaning the deceased) dead yet? All I hate about it is I got him and didn't get the other (or others)." Luther Whistler testified that after deceased was carried, the night of the shooting, to the railroad station, appellant entered the station about twenty minutes later and inquired of him what he knew about the shooting, and upon being told that he knew nothing appellant said, "I shot Griffin. I don't know whether I killed him or not; I hope I did; and all I hate about it, I didn't get the other son of a b____." Whistler said to him, "I wouldn't talk that way," to which appellant replied, "I want to tell you that two sons of b____ tried to poison me with whiskey and carbolic acid and that was the cause of this here." Appellant denied making these statements to Brown and Whistler and also testified that about a month before the shooting of deceased the latter called him to one side and asked him if he would like to have a drink of whiskey, and upon receiving an affirmative answer pulled from his pocket a bottle which appellant, upon putting to his mouth for the purpose of taking a drink, but before drinking therefrom, discovered contained carbolic acid, whereupon he threw the bottle down and left deceased.

Jesse Brooks, a witness introduced in appellant's behalf, testified that in the afternoon and shortly before the killing of deceased, he tried to borrow from him a gun, saying he wanted to get that fellow, and upon being asked by Brooks what fellow he was talking about replied, "Cavanaugh." It does not appear, however, from the testimony of appellant and Brooks or that of any other witness, that the deceased, Wallace or Collins had ever had a difficulty with appellant or manifested any ill will toward him, and no explanation was given by appellant as to why the deceased should have tried to kill him with carbolic acid or have borrowed a pistol with which to take his life, nor was there anything in the testimony of Brooks conducing to show any cause for deceased's desire to obtain the pistol with which to kill him. In view of the absence of a showing of a motive on the part of the deceased for injuring or taking the life of appellant, and the proof of the friendly terms upon which they met in the house of Cates previous to the killing, to say nothing of the other evidence conducing to show the agreeable relations of the parties, at all times, the above testimony of appellant and Brooks is hardly consonant with reason. Our reading of the evidence furnishes us no reason for sustaining the contention of appellant's counsel that it does not support the verdict of the jury. On the contrary, we think it amply sufficient to that end, even without the testimony admitted as the dying declaration of the deceased.

Where, in a criminal case, the question of the guilt of the defendant depends upon whether the witnesses for the Commonwealth or those for the defendant are to be believed and this court is unable to say that the verdict is flagrantly against the evidence it is its invariable rule not to interfere with the verdict of the jury. Chaney v. Commonwealth, 149 Ky. 464; Black v. Commonwealth 154 Ky. 144; Slaughter v. Commonwealth, 152 Ky. 128; Hendrickson v. Commonwealth, 165 Ky. 665.

No reason is apparent for sustaining appellant's second complaint, which questions the correctness of the instruction of the court as to murder and voluntary manslaughter. It is the contention of his counsel, first, that it was prejudicial to appellant for the trial court to define murder and voluntary manslaughter in the one instruction, and second, that the instruction did not correctly state the law with respect to voluntary manslaughter. As to the first objection it is only necessary to say that the practice of giving the law to the jury on the subject of murder and manslaughter in one instruction is proper and has received our approval. Ball v. Commonwealth, 125 Ky. 601.

The second objection is that it was error for the court to instruct the jury that in order to constitute the crime of voluntary manslaughter it was necessary that the...