Choate v. Commonwealth

• Decision Date: 19 June 1917
• Citation: 195 S.W. 1080,176 Ky. 427
• Parties: CHOATE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

195 S.W. 1080

176 Ky. 427

CHOATE v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 19, 1917

Appeal from Circuit Court, Graves County.

B. E Choate was convicted of mayhem, and he appeals. Affirmed.

Robbins & Robbins, H. J. Moorman, and Holifield & McDonald, all of Mayfield, for appellant.

M. M Logan, Atty. Gen., and Overton S. Hogan, Asst. Atty. Gen for the Commonwealth.

CARROLL J.

The grand jury of Graves county returned an indictment, under section 1165 of the Kentucky Statutes, against the appellant, B. E. Choate, charging that:

He, "before the finding of this indictment, did unlawfully, willfully, feloniously, maliciously, and with force and arms, and by placing Henry Campbell in fear, and with a sharp-edged instrument, cut and slit off a member of the person of Henry Campbell, to wit, a part of the privates of Henry Campbell."

Under this indictment, Choate was put upon his trial, and the jury, after finding him guilty, fixed his punishment at confinement in the state penitentiary for a period of three years and four months. From the judgment entered on the verdict, Choate prosecutes this appeal and asks a reversal on several grounds that will be noticed in the course of the opinion.

The crime committed by Choate was cruel and unnatural in the extreme, and was committed after careful preparation and mature deliberation. Admitting the commission of the crime, he sought to excuse himself upon the ground that information he had received that Campbell, at different times and various places, had debauched his wife, had affected his mind to such an extent that at the time of the act he was without sufficient reason to know what he was doing or to know right from wrong, and did not have sufficient will power to govern his actions by reason of an insane impulse which he could not resist or control.

Having admitted the commission of the crime, and his only defense being insanity, it will be seen that the issues for the jury to determine were confined to the investigation of two questions: First, had Choate received information shortly before the commission of the crime that Campbell had been criminally intimate with his wife? and, second, if he had, did this information affect his mind to such an extent as to render him legally irresponsible for his conduct?

It would serve no useful purpose to relate the evidence except so far as may be necessary to present the grounds relied on for a reversal. Sufficient is it to say that Choate and Campbell were neighbors, living about a mile and a half apart, and that until June, 1916, the relations between them and their families had been cordial and friendly, if not intimate. Choate had been married about 15 years, and, so far as the record shows, no children had been born of the marriage. About five years after their marriage, his wife became subject to what the witnesses describe as "spells" or a form of epilepsy, and these attacks continued at intervals from that time until July, 1916. It further appears that the relations between Choate and his wife were at all times, until June, 1916, perfectly agreeable and such as might exist in any well-ordered family.

Choate testifies that about June 14, 1916, his wife confessed to him that on several occasions and at different places, including his own home and the house of Campbell, she and Campbell had been guilty of adultery, each time at the insistence and solicitation of Campbell; that he did not take seriously all she said, because her mind, on account of the epileptic attacks to which she was subject, was sometimes unsettled, and he thought perhaps the story she told him had its origin in one of the hallucinations under which she at times labored; but that it made sufficient impression to cause him to be suspicious to such an extent that he conveyed the information to his brother and requested him to observe the conduct of Campbell and his wife; that a few days after this his brother told him that he had seen Campbell and his wife commit twice in the stable loft the act of adultery, and that his wife shortly afterwards again confessed her guilt; that on Saturday, July 15th, he again discovered that his wife had been criminally intimate with Campbell, and again she confessed her guilt; that on this Saturday he was away from home and received a message that his wife was about to commit suicide, and upon hurrying home found her afflicted with one of the spells she was accustomed to having, and took from her bosom a note which she had written to her husband and friends indicating that she was going to take her life; that on the following Monday, July 17th, he wrote out a short statement, which his wife signed, reciting that she had had sexual intercourse twice on July 15th, as well as on other different occasions, with Campbell; that on the next day, Tuesday morning, he concluded to leave her and did so, going to Mayfield, the county seat of Graves county, at which place he sold a considerable amount of property that he owned, and stayed all night in a hotel in the little town of Wingo, not far from his residence; that on Wednesday morning he got in his buggy and rode to Campbell's house, called him out to the road, and compelled him by threats of violence to get in his buggy with him, and they drove down the road; that as he drove he told Campbell the information he had received as to his intimacy with his wife, naming times and places, and that he intended to either kill or castrate him as he preferred; that Campbell said he was not ready to die; that, after driving about 200 yards from Campbell's house, he put handcuffs on Campbell and forced him to get out of the buggy and lie down in the road; that, after performing the operation, he drove off, leaving Campbell in the road.

It might be noticed here that there is no dispute about the fact that Choate had with him the handcuffs, which he had procured for the purpose he used them from a Chicago house a short time before, and a pistol, as well as the knife that he used, and that Campbell, who was not expecting a visit from Choate, did not know his purpose in calling him out to the road, where he compelled him to get in the buggy by threatening to kill him if he did not. Choate further testified that the information received from his wife and his brother caused him great mental pain and suffering, and disturbed his mind to such an extent that he was unable to control himself or resist the impulse to either kill or maim Campbell; that his first impulse was to kill him, and he would have pursued this course, except he remembered having read in the Bible that no murderer should ever enter the Kingdom of Heaven, and so he changed his mind and decided to emasculate him.

Other witnesses also testified that for some days before July 19th Choate's mental as well as physical condition was so changed as to attract attention, and some medical experts expressed the opinion that he was not accountable for his act.

On the other hand, a number of witnesses said they did not discover any change in his appearance or conduct, and it is not denied that on Tuesday, the day before the crime was committed, he was capable of attending to and did have some important business transactions.

Upon the whole, the evidence of his insanity is not satisfactory, and the verdict of the jury demonstrates that they did not take seriously his evidence or that of the witnesses who testified in his behalf on this subject. But, however this may be, the issue was submitted to the jury under appropriate instructions, and they discarded his plea.

At this point, it is convenient to say that Campbell denied positively that he had ever been criminally intimate with or guilty of any impropriety with Mrs. Choate at any time or place or in any manner.

One of the grounds urged for reversal is that the jury arrived at their verdict by lot in violation of section 271 of the Criminal Code, providing that:

"If the verdict have been decided by lot, or in any other manner than by a fair expression of opinion by the jurors," the court "may grant a new trial, if a verdict be rendered against the defendant by which his substantial rights have been prejudiced."

Seven of the jurors filed like affidavits setting out that after every member of the jury had arrived at the conclusion that the defendant was guilty as charged in the indictment, they then discovered that the 12 jurors who tried said case differed materially as to the punishment to be inflicted, and, for the purpose of reaching a verdict, they each entered into an agreement that each juror would set down on a paper the number of years of confinement in the state penitentiary that he thought the defendant should receive as punishment for his crime, and that the sum of these numbers set down on paper by each of the jurors should be divided by 12, and the quotient so found by said division should be returned into court as the verdict of said jury. That, pursuant to said agreement, they each set down upon paper the number of years he thought the defendant should receive, and the sum of said numbers was added by one of the jury and divided by 12, and the result was three years and four months; and the jury, in accordance to their previous agreement that the verdict should depend upon the result of said calculation, returned into court in said case a verdict directing the confinement of the defendant, B. E. Choate, in the penitentiary for three years and four months. Five of the jurors joined in another affidavit agreeing, in substance, that the verdict was arrived at in the manner stated in the other affidavit; but this affidavit contained the additional statement that, after the result had been ascertained by dividing the total sentences fixed by all the...