Clair v. Commonwealth
| Decision Date | 23 February 1937 |
| Citation | 267 Ky. 363,102 S.W.2d 367 |
| Parties | CLAIR v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Breathitt County.
John Clair was convicted of manslaughter, and he appeals.
Affirmed.
A. H Patton, of Jackson, for appellant.
B. M Vincent, Atty. Gen., and W. Owen Keller, Asst. Atty. Gen for the Commonwealth.
The appellant, John Clair, was indicted for the murder of Joe Greenwell, and, on his trial, was found guilty of manslaughter and his punishment fixed at confinement in the state penitentiary for a period of twenty-one years. He seeks a reversal of the judgment chiefly on the ground that the verdict is flagrantly against the evidence.
The homicide occurred at Wilhurst in Breathitt county on the evening of November 3, 1935, in front of a dance hall owned by Caesar Hurst. A dance had been in progress during the night, and the deceased, his wife, the appellant, and twenty-five or thirty other persons were present. Most of the crowd, including appellant and deceased, became intoxicated, and at about 2 o'clock in the morning the crowd began to disperse. Greenwell had parked his automobile across the road from the dance hall, and Mrs. Greenwell had entered the automobile before the difficulty resulting in the homicide occurred. She testified that she saw appellant staggering across the road calling Pruda Banks, a young woman who had attended the dance. He approached the car and she told him Pruda was not there. He began cursing and was in the act of reaching his hand in the car when Greenwell said: "Don't lay your hand in there, John, Pruda Banks is not in there, that's my old lady." Appellant cursed and threatened to kill Greenwell, and Greenwell shoved him away. Thereupon he struck Greenwell on the head with a cane, or pistol, and fired two shots. As Greenwell sank to the ground, he drew his pistol and fired one shot, and appellant then fired two or three more shots. Greenwell was shot five times, and four of the bullets entered his left chest. Apellant was struck by one bullet, and was severely wounded. The deceased had a .30-caliber Luger automatic pistol, and appellant a .45-caliber Smith and Wesson revolver. Plummer Hollon testified that his automobile was parked in front of the dance hall, and that when he was about to leave appellant walked up and asked if Pruda Banks was in the car. He was told that she was not there, but seemed unconvinced and some one struck a match to enable him to see the occupants of the car. He then walked across the road to a car, and the witness heard him say: "Pruda, get out of there," and some one said: "John, that's my old lady." Almost immediately a woman screamed, and several shots were fired. The first shots were fried from a large pistol, and they were followed by the report of a smaller pistol. Harry L. Salmon lived about 600 feet from the dance hall, and was awake and heard the shooting. He stated that he noticed a difference in the reports of the two guns, and when asked which gun fired first, he said: "The first two were the loud report, then the third shot was a smaller gun, the way I heard it." Appellant testified that after he left the dance hall he saw Plummer Hollon and asked him if Pruda Banks was in his car. Hollon told him that she was not in the car, and he walked across the road with Frank Terrill. Greenwell came up, started an argument, and drew his pistol and fired at appellant two or three times, one of the bullets striking him in the side. He then drew his pistol and shot Greenwell. He was corroborated by several witnesses who testified that the deceased fired the first shot.
The evidence as to who was the aggressor was in direct conflict. According to the testimony of Mrs. Greenwell, the appellant was the aggressor, and the homicide was not justifiable. Her testimony is corroborated to some extent by the testimony of two other witnesses. It may be conceded that the preponderance of the evidence supports the appellant's theory of self-defense, but the credibility of witnesses must be determined by the jury, and the verdict of a properly instructed jury will not be disturbed because it believed one set of witnesses rather than another. Bailey v. Com., 236 Ky. 126, 32 S.W.2d 725; Couch v. Com., 227 Ky. 190, 12 S.W.2d 285.
Most of the proof showed that the shooting occurred at a point on the side of the road where the deceased's automobile was parked, and that after the shooting his body was lying near his automobile. Some of appellant's witnesses testified that the body was lying at another point several feet away, and, in rebuttal, the commonwealth introduced Eric Hatton, who contradicted the testimony of these witnesses as to the location of the body. Appellant complains of the introduction of this testimony on the ground that it should have been introduced in chief and not in rebuttal. There was no issue as to the location of the body until appellant introduced his proof. Under the circumstances, the evidence of which complaint is made was real rebuttal evidence, and the fact that it might have been introduced in chief did not preclude its admission in rebuttal.
After appellant had testified, D. B. Pelfrey was introduced by the commonwealth and asked if he was acquainted with appellant's general moral reputation in the community where he lived from what the people said about him who knew him. He answered that he was, and that appellant's reputation was bad. Appellant complains of the admission of the evidence because the proof of character was not limited to the time of the commission of the offense. White v. Com., 80 Ky. 480, 484, and Allen v. Com., 134 Ky. 110, 119 S.W. 795, 20 Ann.Cas. 884, are cited, but in each of those cases the defendant introduced evidence as to his good character for the purpose of disproving his guilt, and the commonwealth then introduced evidence of his bad character, and when character evidence is introduced for this purpose, it must be limited to the reputation up to the time of the discovery of the crime with which the accused is charged. Unless the defendant attempts to show his general good character by affirmative evidence, the commonwealth cannot introduce evidence of his bad character as substantive evidence bearing upon the question of guilt. In the instant case, the appellant did not attempt to show his general good character, and the evidence of which complaint is made was introduced for the purpose of affecting his credibility as a witness and not as conducing to prove his guilt of the crime charged. Evidence heard for the purpose of affecting a defendant's credibility as a witness should be directed to the time he testifies, and a reasonable period theretofore. Shell v. Com., 245 Ky. 223, 53 S.W.2d 524.
When a defendant offers himself as a witness, he is subject to impeachment in the same manner as any other witness. In Steele v. Com., 192 Ky. 223, 232, S.W. 646,...
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