Cornett v. Commonwealth

• Decision Date: 14 January 1914
• Citation: 162 S.W. 112,156 Ky. 795
• Parties: CORNETT v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

162 S.W. 112

156 Ky. 795

CORNETT v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 14, 1914

Appeal from Circuit Court, Clay County.

Daugh Cornett was convicted of uxoricide, and appeals. Affirmed.

D. K Rawlings, of London, and C. B. Lyttle and D. Y. Lyttle, both of Manchester, for appellant.

James Garnett, Atty. Gen., and M. M. Logan, Asst. Atty. Gen., for the Commonwealth.

SETTLE J.

The appellant, Daugh Cornett, was tried and convicted in the court below under an indictment charging him with the murder of his wife, Lucretia Cornett; his punishment being fixed by the verdict of the jury at imprisonment in the penitentiary for life, and he has appealed. The homicide occurred October 21, 1908, in Clay county, at the home of his wife's mother, Mrs. America Morgan.

Appellant and deceased were married about four years before her death and had lived together at the home of her mother until about a year before her death, when they separated for some reason unexplained in the record. It appears from the testimony of the appellant that shortly before the homicide a suit for divorce had been brought by him against his wife, but, as the record of the divorce case was not introduced on the trial the grounds upon which it was sought do not appear in this record. One witness, Bowman, testified that on the morning of the day deceased was killed she received over the telephone information that she had been granted a divorce, but, as the testimony on this point was objected to and its incompetency is now urged, it will be considered later on in the opinion.

The facts showing the homicide were as follows: The appellant and one Will Carter had for several months been engaged in the business of procuring photographs and other pictures for the purpose of sending them away and having them enlarged, and had spent the week prior to the killing at this work in Breathitt county, but on the morning of the day of the homicide they returned to Clay county to the home of Nathan Sparks, about one and a half miles from that of appellant's mother-in-law. Upon reaching the house of Nathan Sparks about noon, appellant and Carter there ate dinner. Each of them had secured a half gallon of whisky in Breathitt county, some of which they had at the house of Sparks. Both were considerably intoxicated, and upon leaving Sparks' house Carter requested appellant to go with him to his home in Jackson county, three or four miles distant, for the purpose of assisting him to make out a list of the pictures they had gathered up, so that the order for their enlargement, together with the pictures, might be immediately forwarded to the concern for which they were working. Appellant, however, refused to go with Carter to his home, whereupon Carter left Sparks ahead of appellant and rode in the direction of the residence of Mrs. Morgan. Appellant soon followed Carter, riding in a gallop, and waving his pistol above his head. Upon overtaking Carter, they had some further conversation, in which appellant told Carter that he had changed his mind and would go with him to his home, but that he wished to go by Mrs. Morgan's to get his mail. There was a store, postoffice, and several other residences near that of Mrs. Morgan. The postoffice was a separate building adjoining the lot upon which Mrs. Morgan resided. Deceased was the postmistress, and when appellant and Carter reached Mrs. Morgan's they dismounted and appellant asked deceased for his mail. She left her mother's residence and went with him to the postoffice building for the purpose of giving it to him. Appellant took his saddlebags from the horse and carried them into the postoffice. At that time Carter was standing in Mrs. Morgan's yard or porch, engaged in a conversation with her granddaughter, Martha Morgan. Appellant and deceased remained in the postoffice for about 45 minutes, no one else being with them. At the end of that time a shot was fired in the room, and deceased immediately ran from the building to her mother's residence. She was shot through the head, the ball having entered below her right eye and going out at the base of the brain on the opposite side of the head. When she reached her mother's house blood was gushing from the wound and also from her mouth and nose. After shooting deceased, appellant fled from the postoffice, leaving his hat, coat, and saddlebags therein, but carrying with him his pistol, which he fired twice from the rear of the postoffice; one shot being fired in the direction of Mrs. Morgan's house. After running a considerable distance from the postoffice, and through a cornfield and woodland in the rear of it, appellant finally reached the home of Link Clark, where he stopped long enough for Clark to go to the postoffice and bring him his horse, saddlebags and coat, upon receiving which he left Clark's and went to his uncle's, Id Cornett's, where he arrived about 8 o'clock at night. On the same night he left his uncle's and proceeded to Bell county where he remained with some of his kindred for about a month, and then went to Oklahoma. He remained in Oklahoma about two years and went from that state to Fresno, Cal., where he was arrested in the latter part of 1912, and brought back to Clay county, Ky. to be tried for the murder of his wife. While in Oklahoma and California appellant went under the assumed name, Joe McKnight.

The shooting of appellant's wife occurred about 2 o'clock p. m., and she lived nearly two days after the shooting, but became speechless about 11 o'clock p. m. and remained so until her death. Between the time of the shooting and 11 o'clock she, however, repeatedly told what occurred in the postoffice during the interview between herself and appellant, and also how the shooting occurred. There is a contrariety of evidence as to what she said on this subject. According to the testimony of the numerous witnesses introduced for the commonwealth, her version of the shooting made it apparent that it was premeditatedly and maliciously done by appellant, following a threat to kill her and himself; while almost an equal number of witnesses introduced in behalf of appellant testified that she said the shooting was accidentally done by appellant; but after a careful analysis of all the testimony on this point we find her statement to have been, in substance, as follows: That when appellant went with her into the postoffice she discovered that something was wrong, "and bad wrong," with him; that she became afraid of him, and expressed a purpose of returning to her mother's house, but that he refused to permit her to do so; that she attempted to attract the attention of her niece, Martha Morgan, who was on the porch of her mother's residence talking to appellant's companion, Clark, by motioning to her, but, being detected in this attempt by appellant, he said he would kill the first one who went out or came in at the door. She then tried to attract the attention of a man driving by with a load of coal, but was afraid to call to him. Still in fear, she turned to appellant and, to use her language, "began to talk good to him" to prevent his doing her any harm. She even attempted to get away from him and to her mother's house by telling him that she had baked a fine cake and wanted to go and bring him a piece of it, but he refused to let her do so. She then told him that she had been washing all day and was tired and would like to sit down, whereupon he told her to sit down and she did so. While thus sitting in a chair and with her eyes turned toward her niece, still hoping to attract her attention, she was shot by appellant, but was unable to tell just how the shooting occurred, because she was not at the time looking at him. Even down to the time she became speechless, she seemed greatly distressed because afraid that he would kill himself. It is apparent from what she said in the repeated statements made by her that she did not desire that appellant should be punished, and, though declaring that he had killed her for nothing, she also said that she would not hurt a hair of his head, and that she did not desire him to be hurt.

It is fairly apparent from the evidence that the deceased at the time of making the statements referred to believed her wound to be fatal, that death was certain, and that she had but a short time to live; proof of same as her dying declaration was therefore properly admitted. Arnett v. Com., 114 Ky. 593, 71 S.W. 635, 24 Ky. Law Rep. 1440; Com. v. Griffith, 149 Ky. 405, 149 S.W. 825; Biggs v. Com., 150 Ky. 675, 150 S.W. 803.

The appellant made the defense that the shooting and killing of his wife was accidental. According to his version of the matter, after entering the postoffice he and the deceased had an agreeable conversation, at the end of which he took a bottle of whisky from his saddlebags and induced her to take a drink therefrom; that, upon replacing the whisky in his saddlebags, he discovered he had put it in the pocket containing his pistol, and, fearing that the bottle would be broken upon the pistol, h...