Childers v. Commonwealth

• Decision Date: 08 December 1914
• Citation: 161 Ky. 440,171 S.W. 149
• Parties: CHILDERS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

171 S.W. 149

161 Ky. 440

CHILDERS v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 8, 1914

Appeal from Circuit Court, Knox County.

Nora Childers was convicted of voluntary manslaughter, and she appeals. Reversed and remanded.

Black Black & Owens, Golden & Lay, J. D. Tuggle, V. C. McDonald, C Powers, and B. B. Golden, all of Barbourville, for appellant.

Jas Garnett, Atty. Gen., Chas. H. Morris, Asst. Atty. Gen., and J. M. Robsion, of Barbourville, for the Commonwealth.

CARROLL J.

The appellant, Nora Childers, under an indictment charging her and Nelson Berry and Joe Berry with the murder of Charles Childers, was found guilty of voluntary manslaughter, and from the judgment on the verdict she prosecutes this appeal, asking for a new trial.

The deceased, Charles Childers, and the appellant, Nora Childers, had been married about eleven years, and were living together in the city of Barbourville as husband and wife at the time of his death, in December, 1912, which resulted from wounds inflicted by pistol shots while he was at the house of Joseph Berry, who was the father of his wife. At the time of the shooting, from the effect of which Charles Childers almost immediately died, there was present in the room where it occurred, at about 6 o'clock in the evening, Joseph Berry and his wife, the mother of the appellant, Nelson Berry, her brother, and his wife, and the appellant and her daughter, Georgia Childers, a child about nine years of age.

It was the theory of the commonwealth, supported by evidence, that, when the deceased opened the door and walked into the room in which these people were seated, the appellant first shot him twice with a pistol, and then Nelson Berry shot him twice, after which Joe Berry fired two other shots that struck him; and that he was killed without provocation and pursuant to an arrangement or conspiracy between the Berrys and appellant.

While the theory of the defense was that the deceased came into the room in a drunken, threatening manner and caught the appellant in the hair of her head with his left hand, jerking her out of the seat, and at the same time cursing her, while he had his right hand in his right-hand pants pocket; that, when this assault was made on appellant, her brother, Nelson Berry, took hold of the deceased, who thereupon turned from his wife and approached Joseph Berry in a threatening, violent manner; and that Joseph Berry then shot him five times, no other shots being fired.

With this brief statement, we will at once take up the grounds relied on for reversal:

1. It appears from the bill of exceptions that on the trial of the case, after the regular panel had been exhausted, the court directed the sheriff, S. L. Lewis, to proceed to Wilton and on Indian creek around Wilton in Knox county and summon 45 men to appear in the court for jury service, to which direction the attorneys for appellant objected and excepted; but the court stated that the citizens around Indian creek and Wilton were as fair-minded as in any part of the county and knew as little about this case as people in any part of the county, and thereupon the sheriff, in accordance with the directions of the court, proceeded to summon from that part of the county indicated the requisite number of jurors. After this, other objections to the jurors so summoned and to the panel were made and overruled.

The action of the court, in ordering a jury to be summoned, has been left by section 281 of the Criminal Code to the discretion of the trial judge, and is not subject to exception or review on appeal. This section provides that:

"The decisions of the court upon challenges to the panel, and for cause, or upon motions to set aside an indictment, shall not be subject to exception."

And we have uniformly ruled that error, if there be one, in the manner of obtaining or selecting the panel, is not available in this court. Deaton v. Com., 157 Ky. 308, 163 S.W. 204. It might further here be repeated what was said concerning this section in Ellis v. Com., 146 Ky. 715, 143 S.W. 425:

"It must be admitted that this section and the construction given to it places great and unrestrained power in the hands of the trial judge in the selection of a jury, but it is not to be assumed that a judge will exercise it in an arbitrary or unjust manner or so abuse his office or discretion as to knowingly or purposely deny either to the commonwealth or to the accused the right to select a jury in the mode pointed out in the Code and statutes. But, however this may be, it is certain that in this case the trial judge did nothing to affect either the rights of appellant or the commonwealth."

2. For the purpose of showing the motive that the appellant had for killing or aiding in the killing of her husband, Mrs. Hignite, a witness for the commonwealth, over the objection of counsel for the appellant, was permitted to testify about a scene and conversation that she saw and heard between appellant and the deceased some six years before he was shot and killed. This witness, after testifying that she was well acquainted with the parties, who were at that time conducting a store, said:

"One evening I went in their store, and Mr. and Mrs. Childers were there alone. It was after I had had supper, and I went in, and Mrs. Childers looked like she was mad. I says, 'Nora, what is the matter with you?' And she looked at Mr. Childers and cursed him and said he had said a girl that passed was pretty and called the girl a vile name. I says: 'That is not anything; she is just a child.' And Mr. Childers was writing and making out orders. When he got through, he came up and put his arm around her, and says, 'I don't want my little woman to be mad,' and she come at him with a hat pin, and says, 'G--d you! I'll kill you.' When she done that, I turned and walked out. Q. Did you hear the defendant at any other time make any other statement to her husband or offer to injure him in any way? A. Yes, sir. Q. When was that? A. At their home and in the store. Q. When was that? A. I cannot tell how long it had been, but since the time I saw her the first time. Q. What did she do or say at that time? A. If she would be mad at him, she would curse him all to pieces, and saying she would kill him."

Andy Gibson, another witness for the commonwealth, over the objection of counsel, testified that seven or eight years before the trial he heard the appellant, in speaking to her husband, call him a G____ d____ s____ of a b____, and say that she would kill him, and that he ought to be killed.

"How often did you hear her talk in that manner to her husband? A. I have heard her say that four or five or six times some five or six years ago."

Pleas Byrley, also a witness in behalf of the commonwealth, testified that about two years before the trial he had a conversation with the appellant. He said:

"Me and her were talking about a certain fellow, and I was telling her that I wouldn't treat Mr. Childers in the way she was treating him if I was her; if I loved a fellow. I would sue for divorce and go and marry him, and she said he wouldn't have her. She just told me he wouldn't have her; that is, when Childers was living he would not have her, and I think that was about all that was said. We were talking about a fellow by the name of Tom Williams."

This witness further said that a few days after this conversation he saw Williams and appellant hugging and kissing each other on the porch of her house, in the absence of her husband, and that after this they went into the house and Williams remained a good part of the night.

Harriett Bruce, testifying for the commonwealth, said that, on the day deceased was killed, the appellant, in speaking of a difficulty she and her husband had had the night before, said:

"She said her and Charlie had a racket that night. She said Charlie whipped Georgia and cut the blood out of her, and said she took the whip away from Charlie and knocked him down, and he got up and she knocked him down again, and told him if he ever whipped Georgia any more she would kill him. Georgia was their little girl."

In cases like this it often becomes material and important for the commonwealth to show the reason or motive that influenced the accused to commit the crime with which he is charged, and it is a uniform rule in criminal practice, especially in cases in which there is doubt as to who was the aggressor, or where, as in this case, complicity is wholly denied, to permit the commonwealth to give evidence of any pertinent facts or circumstances tending to show threats, ill will, or bad feeling on the part of the accused toward the deceased or a motive that may have contributed to influence the commission of the act. Underhill on Criminal Evidence, § 323; Roberson's Criminal Law, vol. 1, § 246; Franklin v. Com., 92 Ky. 612, 18 S.W. 532, 13 Ky. Law Rep. 814; O'Brien v. Com., 89 Ky. 354, 12 S.W. 471, 11 Ky. Law Rep. 534; Mathley v. Com., 120 Ky. 389, 86...