Claypoole v. Com.

• Decision Date: 26 January 1962
• Citation: 355 S.W.2d 652
• Parties: Harold CLAYPOOLE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 652

355 S.W.2d 652

Harold CLAYPOOLE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Jan. 26, 1962.

Rehearing Denied April 20, 1962.

D. Bernard Coughlin, Maysville, for appellant.

John B. Breckinridge, Atty. Gen., Troy D. Savage, Asst. Atty. Gen., for appellee.

WADDILL, Commissioner.

This is the second appeal of this case. On the former appeal the judgment was reversed because the court erred in permitting the jury to consider incompetent and prejudicial medical testimony concerning the prognosis of the wounded man and the probability of his being able to perform manual labor. Claypoole v. Commonwealth, Ky., 337 S.W.2d 30. Upon retrial appellant was again convicted of maliciously shooting and wounding Leland Edgington with the intent to kill, and was sentenced to prison for seven years. KRS 435.170(1).

In seeking a reversal of the conviction it is urged that the court erred: (1) In overruling the motion for a change of venue; (2) in the method of selecting petit jurors; (3) in allowing the Commonwealth to introduce incompetent and prejudicial testimony; (4) in instructing the jury; (5) in allowing prejudicial argument by the Commonwealth's Attorney; and (6) in excluding the testimony of a certain witness concerning a knife found near the scene of the alleged crime.

In support of the motion for a change of venue there was testimony that the case had received much newspaper and radio publicity, some of which had caused unfavorable comment against appellant, with the result that the prevailing public opinion was so hostile to appellant that he could not obtain a fair trial in Mason County. However, the witnesses who testified in opposition to the motion were also familiar with the state of public opinion in the county and they were of the opinion that appellant could obtain a fair trial in Mason County. Where there is evidence in support and in resistance of the motion the trial judge is vested with a sound discretion in determining the issue and, unless it appears with reasonable certainty there has been abuse of discretion, his decision will not be disturbed. Carnes v. Commonwealth, 306 Ky. 55, 206 S.W.2d 44; Benge v. Commonwealth, 296 Ky. 82, 176 S.W.2d 131.

The publicity given the case was of facts and circumstances which are ordinarily reported by the press and radio in cases of this character. The news articles, which appear as exhibits, do not contain any denunciations of the appellant nor any expressions of an inflammatory nature. These articles merely contained an account of the shooting and a report of the court proceedings in the matter. There are no facts related in these articles which were shown to be erroneous or untrue. During the voir dire examination of the prospective jurors no prejudice against the appellant was developed that was traceable to any unfair publicity given the case. We further observe a jury was promptly selected and accepted by the parties, and that the sentence imposed upon appellant was considerably less than the maximum term the jury was authorized to fix as his punishment. We find no abuse of discretion in overruling the motion for a change of venue and consequently no error was committed by the trial court in this respect. Parsley v. Commonwealth, Ky., 321 S.W.2d 259; Tarrance v. Commonwealth, Ky., 265 S.W.2d 40.

It is contended that certain petit jurors were selected and summoned contrary to law. In considering the procedure employed to obtain petit jurors for the January, 1961--term of the Mason Circuit Court at which appellant was convicted, it is sufficient to say the record reflects that the trial judge complied with the applicable provisions of KRS, Chapter 29.

It is urged that it was error to permit the jury to hear the testimony of a physician that the victim's injury could have caused death and to permit the victim to testify that he was hospitalized for 48 1/2 days as a result of the wound. This testimony was competent as it tended to show the seriousness of the injury, which is a factor for the jury to consider in determining the question of whether the injury was inflicted with intent to kill. Claypoole v. Commonwealth (supra). The trial judge's admonition to the jury as to the purpose of this testimony was sufficient to obviate any possible prejudice to the appellant.

It is contended that appellant was entitled to a directed verdict of acquittal because the evidence was insufficient to support a finding of malice and intent to kill. The fact that the appellant and the victim had quarreled violently shortly before appellant fired two shots at Edgington, one of which caused a serious wound in his hip, is sufficient evidence from which the jury could infer that the shooting was done not only maliciously but also with intent to kill. Taylor v. Commonwealth, Ky., 302 S.W.2d 378; Powell v. Commonwealth, 313 Ky. 532, 233 S.W.2d 113. Moreover malice may ordinarily be inferred from the circumstances, and the use of deadly weapons warrants an inference of malice. Childers v. Commonwealth, 279 Ky. 737, 132 S.W.2d 81. Appellant's contention that he was entitled...