Crenshaw v. Commonwealth

• Decision Date: 21 December 1928
• Citation: 227 Ky. 223
• Parties: Crenshaw et al. v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

227 Ky. 223

Crenshaw et al. v. Commonwealth.

Court of Appeals of Kentucky.

Decided December 21, 1928.

1. Courts. — Calling of special term of circuit court by notice posted at courthouse door, under Ky. Stats., Supp. 1928, sec. 917-13, on ground of emergency by virtue of condition of criminal docket in county, held authorized, though regular term of court was in session in another county in the same judicial district, and there was no order of the court for special term entered at the last regular term.

2. Homicide. — In prosecution for murder, based on conduct of defendants in setting fire to deceased's house, and in firing on inmates as they escaped, evidence held sufficient to sustain conviction.

3. Homicide. — In prosecution for murder, committed by burning deceased's house and firing on inmates as they escaped, in which

it was claimed that the murder was committed on account of deceased's having disclosed defendants' operation of still, testimony as to report and capture of still, as to threats of one of defendants, and testimony that another defendant was seen going in direction of still with load of meal, and that one of defendants had threatened and fired on victims fleeing from burning house, held admissible as to particular defendants involved to establish motive, and competent as to all defendants, if jury was authorized to find existence of conspiracy.

4. Criminal Law. — In prosecution for murder, committed by burning deceased's house and shooting inmates as they escaped, court properly excluded testimony as to burglarizing of store and taking therefrom shotgun shells similar to those found on ground near deceased's house.

5. Criminal Law. — In murder prosecution, committed by burning deceased's house and firing on inmates as they escaped, testimony as to theft of shotgun from neighbor, and finding thereof near deceased's house, was properly rejected as irrelevant.

6. Criminal Law. — Action of trial court in sustaining objections to questions is not ground for reversal, where there is no avowal as to matter sought to be proved, since materiality of answers cannot be determined.

7. Criminal Law. — In murder prosecution, argument of commonwealth's attorney urging jury not to pass up case because of penalty, and stating "that because of weak-kneed Governors and pardon board there is not a man in the penitentiary . . . who has been there as long as 10 years," held not to require reversal, where verdict called for life imprisonment, instead of death penalty; life imprisonment being lowest punishment which could be awarded for murder.

8. Criminal Law. — In murder prosecution, argument of attorney for commonwealth that state's witnesses told the same story before the court of inquiry, at the examining trial, and in the present trial, held not improper, where reference to former hearings was brought out in evidence by defendants' attempts at impeachment.

9. Criminal Law. — Conduct of sheriff in taking members of jury to barber shop, where he and some of the jurors were shaved, held not to require reversal as misconduct on part of jury or sheriff, where commonwealth's affidavits indicated that all of jurors were within sight of sheriff.

10. Criminal Law. — Publication of newspaper report as to division of jury, alleged to have been based on statement of sheriff, held not to require reversal, where the officer denied circulating the report, and it was not shown that he obtained his information from any of the jurors.

11. Criminal Law. — Length of time that jury must be held together to consider its verdict rests largely in sound discretion of trial judge.

12. Criminal Law. — Refusal of trial court to discharge jury after it had several times reported failure to agree held not abuse of discretion on part of trial court in murder prosecution, where jury was out less than two days.

13. Homicide. — In murder prosecution, failure of trial court to instruct jury of all degrees of homicide held not error, where there was positive testimony by eyewitnesses as to circumstances of shooting, and defendants themselves testified, denying their presence, or participation in the crime, without giving any testimony which would reduce the crime, if committed to that of lower degree of homicide.

14. Criminal Law. — In prosecution of several defendants for murder, instruction authorizing conviction of defendants actively engaged in perpetration of murder, and of others present and assisting, and abetting therein, regardless of whether identity of person, who fired the fatal shot was established, held not error, where court also instructed that jury might find any one or more of defendants not guilty.

15. Criminal Law. — Reviewing court must presume that members of jury are men of at least average intelligence.

16. Criminal Law. — Instruction authorizing jurors to consider acts and conduct of individual defendants, as against other defendants not present, if they believed from all the evidence beyond a reasonable doubt that conspiracy existed, held not error.

17. Homicide. — Proof of conspiracy in prosecution of several defendants for murder is but a means of establishing malice, and proof of existence of conspiracy is conclusive proof of premeditation necessary to establish malice aforethought.

18. Criminal Law. — In prosecution for murder, committed in shooting inmates as they attempted to escape from burning house, admission of evidence of threats of one of defendants to kill fleeing members of deceased's family if they did not stop, held not error, where jury was permitted to apply it against other defendants only in case they found a conspiracy existed and was being executed at that time.

19. Homicide. — In prosecution of several defendants for murder, committed by setting fire to deceased's house and firing at inmates as they sought to escape, evidence of operation by some of defendants of still, which deceased reported and of threats and conduct of other defendants held sufficient to warrant submission of question of conspiracy to jury.

20. Conspiracy. — In view of difficulty of proving conspiracy by direct testimony, state is generally permitted wide range, and may establish conspiracy by circumstances.

Appeal from Bullitt Circuit Court.

C.P. BRADBURY and A.E. FUNK, JR., for appellants.

J.W. CAMMACK, Attorney General, and J.M. GILBERT, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE THOMAS.

Affirming.

On May 15, 1928, the judge of the Bullitt circuit court, Hon. Basil Richardson, by notice duly posted called a special term of that court to convene at Shepherdsville, the county seat of the county, on the 28th day of May following the date of the call, and to continue for all juridical days intervening between that date until and including the 9th day of June, 1928. The reason for calling the special term, as set out in the call, was the existence of an emergency, and the condition of the criminal docket in that county, and which emergency was the recent perpetration in the county of the crime for which appellants and the other defendants were indicted. The indictment accused those named therein (Clarence Crenshaw, Elmer Crenshaw, John H. Bolton, Frank Hodge, Shelby Hodge, Less Hodge, Golden Hodge, Jim Harris, and Frank Kinder) of committing the crime of murder by shooting and killing Kate Browning, and which was done in Bullitt county and before the finding of the indictment. In the first count all of them were charged with the killing, and in following counts the murder was charged to have been committed by one or more of them, or by a person or persons to the grand jury unknown, and that the others were present, aiding, assisting, and abetting those who actually perpetrated it.

Defendants were tried at the same special term, and all of them were convicted and punished by confinement in the penitentiary for and during their natural lives. On the hearing of their motion for a new trial, the court sustained it as to the three defendants, Less Hodge, Golden Hodge, and Jim Harris, but overruled it as to the other six against whom judgment was pronounced in accordance with the verdict, and to reverse it they prosecute this appeal.

The record is large. The briefs are many, and the motion for a new trial contains 29 grounds therefor, some of which are repetitions of others, but because many of them are immaterial, or, if they contained error, it is non-prejudicial, we will not attempt to discuss all of them seriatim, but will content ourselves with a discussion and determination of only those that we deem of sufficient merit to call for consideration.

It is first urged as a ground for reversal that the court was without authority to call the special term at which defendants were indicted, tried and convicted, in the manner it did, i.e., by notice posted at the courthouse door as permitted by the first part of section 971-13 of the 1928 Supplement of Carroll's Kentucky Statutes, and which was an act of the 1926 session of the Legislature, and being chapter 31, page 128, of the Acts for that year. The argument in support of this ground is that at the date of the call for the special term a regular term of court was in session in Larue county in the same judicial district, and that upon the date the special term convened under that call, and throughout the days of its sitting as designated in the call, and during which defendants were indicted and tried, a regular term of the Nelson circuit court was provided for by law, and that under section 971-13, supra, of the statute a special term of court called to be held "while a court is or may be in session in the same or some other county in the district" must be called by an order of court entered at the last regular term for the county in which it is called, and that no such term can legally be called by posting of notices. This ground was raised by a special demurrer to the jurisdiction of the court, and by other various...