Cotrell v. Commonwealth

• Decision Date: 10 September 1891
• Parties: Cotrell v. Commonwealth.
• Court: Kentucky Court of Appeals

17 S.W. 149

Cotrell v. Commonwealth.

Court of Appeals of Kentucky.

September 10, 1891

Appeal from circuit court, Graves county.

"Not to be officially reported."

Indictment of John Cotrell for murder. Verdict of guilty. Defendant appeals Affirmed.

Holt C.J.

The appellant, John Cotrell, is under a life sentence for the killing of William Mason. A reversal of the judgment is asked mainly upon three grounds. They alone require consideration. They are: First, misconduct of the prosecuting attorney in the argument of the case; second, the admission of illegal testimony offered by the state, and the rejection of competent evidence offered by the accused; and third, a failure to properly instruct the jury. The deceased went with his employer to a mill for a load of lumber. There they met the accused. The deceased was whistling, when the accused said to him: ""What will you take for that tune, Will, to sell it?" The reply was: "I don't want to sell it; and, if I did not to you." The accused said: "Who are you jawing? Don't sass me. I will show you." The reply was "I am not sassing you. If I was, I am not afraid of you." The accused stepped back, got a maul, and, after getting behind the deceased, who was a boy some 16 or 17 years old, struck him with it, causing death in a few hours. The appellant fled, but was subsequently arrested in another state.

The argument of the prosecuting attorney to the jury was of wide range. He read from the Bible, ridiculed the expert testimony offered by the accused in support of the defense of insanity alluded to the number of killings in the country and the convictions for murder, and said a great many things dehors the record. Considerable latitude must necessarily be allowed in the argument of a cause, yet overzeal in an officer of the state, whose official position gives him a commanding influence, is not to be so far commended as to authorize him, where life or liberty is at stake, to go beyond the limit of a fair argument of the evidence in the case and matters fairly incidental to it; and the court should always be ready to correct it. In this instance, however, when appealed to, the jury were distinctly told that his statements were not to be regarded as evidence. If, therefore, any portion of his argument were improper yet, as has been decided by this court, it must be regarded as not having been prejudicial to the rights of the accused. In the face of the warning and instruction of the court, it cannot well be presumed that it was so. Hilton v. Com., (Ky.) 16 S.W. 826. Complaint is made that the state was allowed to prove by witnesses who were not professional experts, and without their giving any particular facts to support their belief, that in their opinion the accused, when the killing occurred, knew it was wrong. They were persons, however, who knew the accused, and were in the habit of seeing him. It appears that they had, from association and observation, an opportunity of forming an opinion as to his mental condition. It is well settled in this state that the opinions of those who speak from acquaintance with and actual knowledge of a person are admissible as evidence as to his mental capacity or incapacity, although they may give no particular circumstances in support of their belief. The jury are left to judge of the value of it. Brown v. Com., 14 Bush, 398. It is urged that the accused had a right to prove the neighborhood report as to the condition of his mind. We do not think so. It is said that a person's character is shown by his conduct, as is insanity; and that, as you can...