Cornelison v. Commonwealth

Decision Date11 December 1886
Citation2 S.W. 235,84 Ky. 583
PartiesCORNELISON v. COMMONWEALTH.
CourtKentucky Court of Appeals

Appeal from circuit court, Montgomery county.

Wm Lindsay, Wood & Day, Thos. Turner, R. A. Mitchell, and H. M Woodford, for appellant, Cornelison. H. L. Stone, Hargis &amp Eastin, W. J. Hendrick, and P. W. Hardin, for the Commonwealth.

PRYOR C.J.

The following indictment was returned into court by the grand jury of Montgomery county, charging that the appellant, John J. Cornelison, did unlawfully, willfully, and maliciously and with the intent to wound kill Richard Reid, in and upon the person of said Reid, make an assault and battery with a cane, stick, and cowhide, and did then and there unlawfully, willfully, and maliciously, with the intent aforesaid, strike, beat, bruise, and wound him, the said Reid, with a cane, stick, and cowhide, and inflict upon his head and body grievous and dangerous blows, whereby the said Reid was cruelly and dangerously beaten and wounded, and his life greatly endangered, and against the peace and dignity of the common wealth of Kentucky. " To this indictment the appellant pleaded not guilty, and the jury, after hearing the testimony, returned into court the following verdict: "We, of the jury, find the defendant guilty, and fix his punishment at a fine of one cent and costs, and imprisonment in the county jail for three years."

Before proceeding to the consideration of the principal questions made by the defense, the court below having overruled the motion for a new trial, it is necessary to notice some of the rulings of the court made before the plea of not guilty had been entered. A jury having been impaneled, the defendant offered to file a written plea disclaiming any intention to kill or seriously injure Judge Reid; at the same time confessing the assault, and regretting its occurrence, filing a plea of not guilty, and asking that the verdict be tempered with mercy. The court, at the instance of the attorney for the state, refused to permit the plea to be filed. The accused then offered to file this plea: "The defendant pleads guilty of the offense charged in the indictment, viz., a malicious assault and battery." The attorney for the state again objected, but consented that it might be filed, excluding the words "a malicious assault and battery." The objection to the plea was sustained, and the defense then moved to strike from the indictment the words "with the intent to kill and wound Richard Reid." This motion was overruled, and the plea of not guilty entered; but, before any witnesses had been examined, this plea was withdrawn, and the following plea filed: "The defendant pleads guilty of the offense charged in the indictment." After this plea had been entered the commonwealth's attorney had a witness called for examination; the accused objecting on the ground that no issue of fact had been made for the jury to determine; but the court adjudging that the state had the right to place the facts before the jury, although the plea of guilty had been entered, the defendant then asked to withdraw his plea, and offered to plead not guilty. This the court refused, and the commonwealth proceeded with the examination of the witnesses. To all of this the defendant objected, and by proper exceptions saved the questions. After the evidence on both sides had been heard by the jury, the defendant, on his motion, was allowed to withdraw his plea of guilty, and enter a plea of not guilty, upon which the verdict was returned as already stated.

We perceive no error in regard to the preliminary motions made by the appellant in offering to file the various pleas, or any evidence, expressly or by inference, of any arbitrary action by the court in refusing to permit a special plea to be filed, or a departure from the ordinary mode of pleading provided by the Code. There are but three kinds of pleas to an indictment: (1) A plea of guilty; (2) not guilty, and (3) a former conviction or acquittal. When the plea of guilty has been entered, the commonwealth to increase, or the defendant to mitigate, the punishment, had the right to introduce testimony to enable the jury to render a true verdict, when making inquiry as to the extent of the punishment. A plea, special in its character, for the purpose of avoiding such inquiry, should not be allowed to be filed.

It is insisted by counsel that after the state had proven the admissions of the accused as to the character of the assault, and his reasons for making it, that it was incompetent to show that the words in red pencil were made by Judge Bowden, and not by Reid; that no issue could be made as to the mistaken belief of the accused after the reasons assigned by him had gone to the jury, at the instance of the prosecution. We think it was competent, and clearly relevant to the issue. If true, it was a mitigating circumstance to be considered by the jury; if untrue, the appellant was acting at his peril in making an assault for reasons that did not exist, and the commonwealth had the right to prove the reasons assigned by the accused, and then to show that they had no foundation in fact.

Whether the court should have permitted to go to the jury the pecuniary condition of the accused, and the size of his family, is an immaterial question on this appeal. He has been fined only one cent and the costs, and we know of no rule, where a party has been guilty of a public offense for which imprisonment is the punishment, subjecting him to a milder punishment than would be adjudged against another, because the former has a family, or is without any estate.

Nor do we see any error in the statement of the physicians as to Reid's condition after the injury, or as to the manner in which he was affected, although the recitals as to his symptoms came from the injured man. Nor is the manner in which the grand jury was selected the subject of revision by this court.

The testimony in this case is, in substance, this: In the forenoon of the day on which the assault was made, the witness Col. Johnson had invited the defendant, Cornelison, to the law office formerly occupied by Reid & Stone, but at the time the office of Stone, to consult about taking certain depositions. Reid was in the office at the time, and Cornelison read a copy of a letter that had been written, as Reid supposed, for the purpose of injuring him in the canvass he was then making for appellate judge. Reid, upon hearing the letter read asked for some papers that the witness (Johnson) had, to enable him to reply to the letter. The papers were in the valise of the witness, and the valise was at the office of Cornelison. Cornelison said to Reid: 'Go to the office;' and he would show them to him. Reid responded that he had an engagement for the forenoon, but would call at defendant's office as he returned from dinner, at 2 o'clock. The assault was committed on the evening of that day, between 2 and 3 o'clock; the witnesses testifying that they saw Reid running to the store of Bean, and, while there, the defendant lashing him over the head and shoulders with a cowhide. The account given of the attack upon Reid in the law office of the defendant, as he stated to witnesses who have testified on the trial, is as follows: The accused said that Reid, who was his counsel in a certain case, had betrayed him, and induced the other judges (Reid being then one of the superior court judges) to render a decision against him, affecting his character, and he had the evidence of it in his own handwriting; that at the time of the attack he presented the writing to Reid, and asked him if he had written it, to which he responded, 'No.' The defendant then told him he was a liar, and, after some words had passed, struck him once with his cane over the head, and attempted to inflict other blows that were warded off by Reid. When Reid attempted to get away, he (the defendant) pulled a cowhide from under his clothes, and struck him about 50 licks. Reid then made for the door, but defendant headed him off, and forced him under the stairway in a corner of the office, and then struck him about 25 more blows with the cowhide; that Reid made no resistance, but begged, and, finally escaping, was pursued by the defendant into the street, and into Bean's store, where the lash was again applied.

Cornelison had applied for a rehearing in the case, where the judgment had been adverse to him, and found on the margin of the record in that case, written with a red pencil, the words "why," "his fee," and "to his own statements." He believed the writing was that of Reid, and exhibited it to two or more persons before the assault was made, who were familiar with his handwriting, who stated to him, and also on the trial of this case, that they believed it was Reid's handwriting. He thought from the marginal notes that his counsel had proven treacherous, and had the case decided against him. Judges Bowden and Richards, who were associated with Judge Reid on the bench,-- the one (Bowden) stated that he made the marginal notes; that they were written by him; Judge Richards states that these marginal notes are in Bowden's handwriting; both testifying that Judge Reid had said nothing about the case until after the opinion had been delivered.

The principal objection made by counsel for the accused to the judgment of conviction, and the one to which the attention of this court has been particularly called, arises from the instruction given at the instance of the attorney for the state, authorizing the jury, upon their finding the defendant guilty, "to fix his punishment by fine in any sum, or by imprisonment in the county jail for any period of time,--one or both at their discretion." It is insisted-- First, that, by the rule of the common law, a...

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