Davenport v. Commonwealth

• Decision Date: 07 March 1941
• Citation: 285 Ky. 628
• Parties: Davenport v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

285 Ky. 628

Davenport v. Commonwealth.

Court of Appeals of Kentucky.

March 7, 1941.

1. Homicide. — An indictment charging in the accusatory part that defendant murdered his wife "with malice aforethought," and in the descriptive part alleging that he struck her with a deadly weapon with the willful, felonious, and malicious intent to kill her, from which she died, was not defective on ground that it did not describe in the descriptive part that the killing was done with "malice aforethought" (Criminal Code of Practice, secs. 122, subd. 2, 124, subd. 4).

2. Homicide. — Evidence sustained conviction for murder.

3. Criminal Law. — Any evidence, even though slight or circumstantial, tending to establish the guilt of the accused of any degree of the offense charged, is sufficient to take the case to the jury and sustain a conviction, unless the verdict is so flagrantly

against the evidence as to shock the conscience or lead to the conclusion that it was the result of passion or prejudice rather than the deliberate consideration of the jury.

4. Criminal Law; Searches and Seizures. — Where officers looked around premises to determine how and with what weapons murder had been committed and for clues, without suspecting defendant of the murder of his wife, and defendant subsequently voluntarily delivered his bloody underwear, etc., to the officers, iron bar, rag or handkerchief, on which blood was found, and other exhibits, found by officers at defendant's home and taken away by the officers, were not found or taken through an "unreasonable search and seizure" prohibited by the State and Federal Constitutions, and were admissible in murder prosecution (Constitution of Kentucky, sec. 10; U.S.C.A. Constitution, Amendment 4).

5. Criminal Law; Searches and Seizures. — Where a search is made without objection on the part of the owner of property, the search is legal and not an "unreasonable search and seizure" as forbidden by the State and Federal Constitutions, and evidence obtained thereby is competent (Constitution of Kentucky, sec. 10; U.S.C.A. Constitution, Amendment 4).

6. Criminal Law. — In murder prosecution, wherein defendant contended that when officers came to his house to investigate the murder of his wife he was unconscious from a blow on the head, there was no necessity for the trial court to submit for jury's determination whether defendant consented to the search of his home by officers, because of defendant's alleged unconscious condition after the murder (Constitution of Kentucky, sec. 10; U.S.C.A. Constitution, Amendment 4).

7. Homicide. — In prosecution of defendant for the murder of his wife, wherein he testified that she was killed by a burglar, and denied that he made any attack on her, trial court properly refused to give requested instructions relating to manslaughter and self-defense, notwithstanding that there was evidence of a struggle.

8. Homicide. — Where a defendant testifies to facts showing how the killing occurred, and there is no room for any possible theory except that defendant is guilty of murder or that he is innocent, there is no reason for the court to give manslaughter and self-defense instructions.

9. Homicide. — Where evidence concerning a homicide is wholly circumstantial, and there is no eyewitness to the homicide, and there is some evidence of a struggle, and defendant does not testify as to how the killing occurred, the court must give all the law on homicide.

10. Criminal Law. — Where instruction submitting commonwealth's theory was in such language that jury could easily understand it, and its negative fully covered accused's defense, it was not necessary for trial court in murder prosecution to give defendant's requested instruction that if some person other than defendant killed deceased, defendant should go acquitted.

11. Criminal Law. — In murder prosecution, wherein the commonwealth introduced the sheriff and deputy who testified that defendant's reputation for morality and veracity was bad from what they had heard people say who knew and associated with him, but that they could not testify from their own personal knowledge or experience, refusal to require deputy to state any of the persons who gave him his information, and refusal to require the sheriff to testify to more than two of such persons, was reversible error, since it denied defendant the right to cross-examine.

12. Criminal Law. — That a person's general reputation for morality or veracity is bad may be shown only by positive testimony that his neighbors and associates have so spoken of him until such has become a part of his general reputation, and it must be proved by affirmative testimony, but such is not the rule when one would prove that his general reputation for morality and veracity is good.

13. Witnesses. — Where a witness knows accused and the people in the community wherein he resides and has been in such position that he probably would have heard any derogatory statements concerning accused, and he testifies that he has never heard anything said against defendant's character and reputation, or that he has never heard it discussed, he is a competent witness to testify that defendant's general reputation in the community is good.

14. Criminal Law. — One whose word and morals are accepted by his associates and neighbors in the community in which he lives ordinarily excites no discussion or comment, and he will be accepted in the community as a person whose veracity and morals are not subject to criticism, and hence silence authorizes the testimony that such a person's general reputation in the community for veracity and morality is good.

15. Criminal Law. — In murder prosecution, it was prejudicial error for the trial court to exclude testimony of defendant's character witness that defendant's reputation for peace and quietude was good and that his general reputation for veracity was good, merely because the witness testified on cross-examination that he had not heard defendant's reputation discussed any more than "yours or mine would be."

16. Criminal Law. — Error in having sheriff and his deputy, each of whom was a witness against defendant as to material facts and as a character witness against him, placed as guards over jury, instead of another deputy who was not a witness, was "waived" where matter was not called to trial court's attention until motion for new trial was filed.

17. Criminal Law. — A juror may not give testimony to impeach his verdict (Criminal Code of Practice, sec. 272).

18. Criminal Law. — In murder prosecution, trial court's admonition that jurors should not read newspaper accounts of the trial should have been strictly enforced.

19. Criminal Law. — The commonwealth on the trial of a criminal prosecution is not limited to only witnesses who appeared before the grand jury.

20. Criminal Law. — Representatives of commonwealth in arguing the facts should confine themselves to the evidence coming from the witness stand.

21. Criminal Law. — When the representatives of the commonwealth draw inferences from the evidence, they should be stated as inferences and not as facts shown by the evidence, otherwise the jury may confuse the inferences drawn in the argument with the facts proven.

22. Criminal Law. — In prosecution of defendant for the murder of his wife, arguments of attorneys representing the commonwealth that defendant had been laughing ever since his wife died, that defendant was dancing around before his wife's body was cold, and that defendant testified that he did not know that girl was born to his wife after her divorce from a prior husband, when the fact was that defendant testified to the opposite, though improper, were not so prejudicial as to constitute reversible error.

23. Criminal Law. — In murder prosecution, wherein court excluded testimony of child on objection by defendant's counsel, it would have been reversible error for prosecution in argument to jury to refer to the fact that defendant's counsel objected, but it was not prejudicial to make such remark after defendant's counsel in his argument remarked that the child did not qualify as a witness and could not testify.

24. Witnesses. — The test as to the competency of a witness because of his or her age is whether the witness possesses sufficient intelligence to narrate truthfully the facts to which his or her attention is directed, and about which he or she may be questioned, and there is no unalterable rule measuring the competency of a witness because of his or her age.

25. Witnesses. — Regardless of an infant's age, if the infant is shown to possess sufficient intelligence and sense of obligation to tell the truth, although unable to explain or even comprehend the mysteries of the future life, competency is established.

26. Witnesses. — The date of the competency or incompetency of an infant to testify is the time when the infant is offered as a witness, and not the time when facts about which the infant is to testify occurred.

Appeal from Livingston Circuit Court.

Charles Ferguson, H.H. Lovett and J.C. Cannaday for appellant.

Hubert Meredith, Attorney General, and A.E. Funk, Assistant Attorney General, for appellee.

Before H.F.S. Bailey, Judge.

OPINION OF THE COURT BY SIMS, COMMISSIONER.

Reversing.

The defendant, J.C. Davenport, was convicted of murdering his wife and his punishment was fixed at life imprisonment. He assigns eight errors in seeking to reverse the judgment: 1. The indictment was defective; 2. he was entitled to a peremptory instruction, if not, then the verdict is flagrantly against the evidence; 3. evidence was introduced against him which was secured through an unlawful search of his home and store; 4. the court failed to instruct the jury on the whole law of the case, and an incorrect instruction was given; 5. the court erred in the admission of impeaching testimony against him and his witnesses, and in rejecting competent character testimony...