Combs v. Commonwealth

• Decision Date: 20 October 1914
• Citation: 169 S.W. 879,160 Ky. 386
• Parties: COMBS v. COMMONWEALTH. [d1]
• Court: Kentucky Court of Appeals

169 S.W. 879

160 Ky. 386

COMBS v. COMMONWEALTH. ^[d1]

Court of Appeals of Kentucky.

October 20, 1914

Appeal from Circuit Court, Floyd County.

Wesley Combs was convicted of murder, and he appeals. Affirmed.

A. F Byrd, of Jackson, and Harkins & Harkins and J. M. Bowling all of Prestonsburg, for appellant.

W. H May, of Prestonsburg, Commonwealth's Atty., and James Garrett, Atty. Gen., for the Commonwealth.

HANNAH J.

Wesley Combs shot and killed James Salisbury, a merchant residing at the mouth of Beaver creek, in Floyd county, Ky. in the latter's storehouse, on July 17, 1913. He was tried and convicted of the crime of willful murder at the February term, 1914, of the Floyd circuit court, and his punishment fixed at confinement during life in the penitentiary; and from the judgment of conviction, he appeals.

It appears from the evidence that there had been some previous trouble between Combs and the deceased, and that on the day of the killing Combs, Newberry Brown, Buffalo Hall, and Girard Richmond had been together quite a little, and that a short time before the killing they had been in Salisbury's store drinking cider, when Brown and Combs got into a quarrel, whereupon Salisbury told them that if they wanted to quarrel to go on outside. Combs replied that he didn't have to, but finally went. Soon thereafter Brown returned to the store and went in, and he was followed by Combs, Hall, and Richmond. They called for some cider and drank it, and, after talking a short time Richmond started out, but stopped at the door to wait for the others. Brown and Hall were apparently trying to induce Combs to go with them, and Salisbury was also urging him to go, saying he wanted to close up and get his supper. Combs had his pistol out in his hand, holding it behind him, and when Salisbury told him to go on out, he replied that he didn't have to, and fired four shots at Salisbury, one of which struck him in the back part of his arm, one in the back part of his shoulder, and one in the back part of his body, going squarely through him, and killing him almost instantly.

Combs testified that deceased had a pistol drawn upon him when he fired, but this is denied by Mrs. Salisbury, widow of the deceased, who was the only person present, other than defendant and Brown, Hall, and Richmond, when her husband was killed, and who swore that her husband had no pistol at the time and had his back to Combs when he was shot.

There was some proof that Brown had taken a pistol away from Hall, and that this was the weapon with which Salisbury was killed. Defendant, Combs, testified that he took the pistol away from Brown because Brown had been in the habit of getting drunk and shooting up the town.

The grand jury indicted all four of them for the murder of Salisbury, and counsel for appellant claim that this action of the grand jury in joining Brown, Hall, and Richmond in the indictment was for the purpose of discrediting them as witnesses in testifying for the defendant, and not in good faith and in the belief that they were really guilty.

If the charge made by counsel were true, such procedure should be severely condemned; but the record fails to establish the truth of the charge. According to the testimony of defendant and Brown, Hall, and Richmond, the four of them were together nearly all the afternoon of the killing, and were in Salisbury's store twice together before the killing, going in together and out together; and just before the killing they went out together and went around the side of the building and remained in conversation for some time, and then all went back into the store, when the killing was done. According to the testimony of the defendant, and of Brown and Hall, the killing was done with Hall's pistol, which Brown had obtained from Hall, and which Combs had obtained from Brown.

The grand jury was justified alone from the testimony of the parties themselves, in believing that a conspiracy existed, and in indicting them all.

As stated by counsel for appellant in his brief, the chief grounds relied upon for a reversal are:

"(1) The failure of the court to grant the defendant a change of venue; (2) because the sheriff who had charge of the jury during the trial was related to the deceased; (3) misconduct of employed counsel in his argument to the jury; (4) impeachment of the defendant's moral character at the time of the trial and without confining such evidence to his general reputation previous to the charge against him for which he was tried; and (5) the admission of evidence offered by the commonwealth as to acts and declarations of the defendant prior to the killing, which had no reference to the deceased nor to the trouble in which deceased was killed."

These will be discussed in their order.

1. Referring first to the contention that the trial court erred in denying the application for a change of venue, it is alleged in the petition filed seeking a change of venue that Salisbury was a member of an influential family, and was extensively related throughout Floyd county, many of his kinspeople being prominent in business, social, and political affairs, while defendant had resided in the county only eight years, and had no relatives therein except his parents and his brothers; and, as grounds for the application, it was alleged that the state of public opinion in Floyd county was such against the defendant that he could not have a fair and impartial trial therein. With this petition were filed the affidavits of Ham Wallen and of Larce Burchett, each of whom stated therein that the affiant was acquainted with the state of public opinion in Floyd county, and that the allegations of the petition for a change of venue were true.

However, upon examination by counsel for the commonwealth at the hearing of the application for the change of venue, it developed that Burchett did not know whether Salisbury was married or single, did not know to whom Salisbury was related, and did not know anything about the state of public opinion in Floyd county in respect to this matter, except that he stated that he had heard three men unknown to him talking on one occasion at the mouth of Beaver creek, and they said Combs could not get a fair trial in Floyd county, these being the only persons by whom he had ever heard the matter discussed.

The other affiant, Wallen, on examination by counsel for the commonwealth, could not recall the name of any person by whom he had heard discussed the matter of defendant's ability to have a fair and impartial trial in Floyd county; and the witness himself did not appear to be of the opinion that such a trial could not be had by defendant.

James Patton, who testified for defendant upon the hearing of the application for a change of venue, said the feeling against defendant seemed to be pretty bad; that it seemed that defendant bore a bad name; and that he couldn't say whether it was probable that defendant could have a fair and impartial trial in Floyd county.

John Sellards testified for defendant that there seemed to be some sentiment against him; but he could not say whether defendant could get a fair trial in Floyd county or not.

Solomon McGuire testified for defendant that he had some doubts as to whether defendant could have a fair trial in Floyd county.

The commonwealth, upon the hearing of the application for a change of venue, introduced A. J. Wright, H. C. Hobson, and Ali Ward, two of whom testified that they thought defendant could, and the other that he knew of no reason why defendant could not, get a fair trial in Floyd county.

In point of fact, the testimony both for and against the application was somewhat noncommittal, failing to exhibit any definite state of public opinion in Floyd county in respect to the defendant and his trial. The defendant in his petition charged that the state of public opinion was such that he could not have a fair trial in Floyd county, and the burden of proof was on him to show such a state of public opinion as would indicate a reasonable probability of his being unable to obtain an impartial trial. Mere proof of the fact that defendant's victim had a number of relatives in the county was not sufficient to establish such a state of public opinion as would operate to deprive him of a trial therein. And, upon this state of record, we do not think that the trial court abused its discretion in denying the defendant's application for a change of venue.

2. As to the complaint that Jonathan Fitzpatrick, the deputy sheriff in whose custody the trial court placed the jury by whom appellant was tried, was related to the deceased, James Salisbury, it seems that the sheriff of Floyd county was related to Salisbury, and that, objection being made by defendant to the jury being placed in the custody of the sheriff, a deputy sheriff, Fitzpatrick, was intrusted with that duty.

It is charged in defendant's affidavit filed in support of his motion for a new trial that the mother of James Salisbury and the mother of Jonathan Fitzpatrick were half-sisters, and that this fact did not become known to the defendant until after the verdict had been returned. A counter affidavit filed by Fitzpatrick declares that his mother and the mother of James Salisbury were not related in any way, and that while the jury was in his custody he did not directly or indirectly speak to any of the jurors about any matter pertaining to the trial or affecting the question of defendant's guilt or innocence; that the case was not mentioned to the jurors by him or any other person while they were in his charge; that he did not permit them to communicate with any other person about any matter except under the direct supervision of the court during the trial.

Defendant then filed...