Davis v. Commonwealth
| Decision Date | 17 December 1937 |
| Parties | Davis v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
1. Criminal Law. — In murder prosecution, prosecutor's statement that, "We have in this county too much murder, and the law of self-defense is worn out long ago," was not prejudicial.
2. Criminal Law. — The commonwealth's attorney may denounce crime in his speech and may refer to facts within knowledge of the public in general to illustrate a point or warrant a conclusion.
3. Criminal Law. — In murder prosecution, displaying of deceased's clothing before witnesses for purpose of identification and giving of testimony as to such clothing, all in presence of jury, was not error, nor did prosecutor err in passing clothing to jury after its identification and introduction in evidence.
4. Criminal Law. — In homicide prosecution, commonwealth's attorney may show jury the clothing of the deceased.
5. Criminal Law. — In murder prosecution, verdict could not be attacked on ground of bias of juror, where such attack was based on affidavits of other jurors which stated that such biased juror had discussed things in jury room that were not brought out in evidence, since by statute a juror cannot be examined to establish ground for new trial except to show verdict was made by lot (Criminal Code of Practice, sec. 272).
6. Criminal Law. — In murder prosecution, verdict could not be impeached under statute which provided for challenge "for implied bias if juror be related to deceased by consanguinity or affinity," where impeachment was based on affidavit which stated that husband of juror was uncle of N. who was husband of A., who was mother of deceased, since from such statement it was difficult to conclude whether there was any relationship, either by consanguinity or affinity (Criminal Code of Practice, sec. 210).
7. Criminal Law. — The jury is sole judge of facts, and their province is to pass upon evidence and circumstances as to guilt or innocence of defendant.
8. Homicide. — Where accused, deceased, and others had been drinking accused had stopped to buy cartridges for his pistol, and thereafter scuffing ensued, which led to fatal shooting of deceased by accused, and accused offered no explanation for presence of hole in back of deceased's head, evidence whether defendant was guilty of voluntary manslaughter was a question for jury.
9. Criminal Law. — Where there is any evidence, however slight, tending to show guilt of accused, the case should go to jury.
10. Criminal Law. — A verdict is not palpably against evidence when it is reasonable for jury to find from the proven facts and circumstances that defendant was guilty.
11. Criminal Law. — It is the province of the jury to believe one witness over another or one set of circumstances over another, and refuse to believe other witnesses, since credibility of witnesses must be determined by jury.
Appeal from Knott Circuit Court.
D. HOLLENDER HALL and J.C. BURNETTE for appellant.
HUBERT MEREDITH, Attorney General, and W. OWEN KELLER, Assistant Attorney General, for appellee.
Affirming.
Kile Davis and Beckham Allen were indicted in the Knott circuit court for the crime of the murder of Woodrow Allen. At the March term of that court a severance was demanded; Kile Davis was tried and convicted of voluntary manslaughter and his punishment fixed at twenty-one years in the penitentiary. He appeals. He relies upon the following errors for reversal: (1) That the argument and conduct of the commonwealth's attorney was improper; (2) that there was both actual and implied bias in the minds of certain jurors who tried the case; (3) that the court erred in failing to instruct the jury to find the defendant not guilty; and (4) that the verdict was not supported by either the law or the evidence and was so flagrantly against the law and the evidence to show that it was the result of passion and prejudice.
We will discuss the alleged errors in their order. The first error claimed is that the commonwealth's attorney made improper remarks in his argument to the jury. Counsel practically concedes that the conduct of the commonwealth's attorney was not sufficient to justify a new trial. We find nothing in the statements made by the commonwealth's attorney that was improper or of a prejudicial nature. Everything that the commonwealth's attorney said necessarily was drawn from the evidence, or could have been deduced therefrom. We have often held that the commonwealth's attorney may denounce crime in strong terms without committing an error. The only expression made by the attorney, that was not entirely deducible from the evidence, was this:
"We have in this county too much murder, and the law of self-defense is worn out long ago."
We see nothing prejudicial in those remarks. We have often said that the commonwealth's attorney may denounce crime in his speech and may refer to facts within the knowledge of the public in general to illustrate a point or warrant a conclusion. Murphy v. Com., 263 Ky. 347, 92 S.W. (2d) 342; Clark v. Com., 209 Ky. 51, 272 S.W. 11; Tyree v. Com., 212 Ky. 596, 279 S.W. 990; and many other cases similar.
There is another complaint, that the commonwealth's attorney committed a prejudicial error by presenting to the jury the clothing of the deceased before the clothing was introduced in evidence. We find that the evidence does not support that contention. The clothing that the deceased wore when he was shot was identified and made a part of the evidence. Jack Compton, a witness for the commonwealth, stated in substance that he was present at the time Woodrow Allen, the deceased, was stripped of his clothing and he saw their condition; he "put them in a paper meal poke or flour poke," and gave them to Bud Dobson. He said the clothing was in the same condition as when removed from the dead man's body. Bud Dobson stated he was present when the dead man was stripped, and his clothing was put in a "poke" by Jack Compton and was then taken to Coet Dobson's, who kept them. Coet Dobson stated that he had retained possession of them. There was an objection that the clothing was testified to in the presence of the jury; that, of course, would necessarily follow because there could be no other way to identify the clothing except for the witnesses to do so in the presence and hearing of the jury. We see nothing to prejudice the rights of the defendant because the commonwealth's attorney had the clothing in his hands in the presence of the jury before they were fully identified, and at that time was endeavoring to show that the clothing was in the same condition as they were just after the shooting. In doing that the commonwealth's attorney passed them to the jury over the objection of the defendant's attorney. We are unable to see any error in that, prejudicial to the rights of defendant.
It has been the rule in this jurisdiction for years that the commonwealth's attorney may show the jury the clothing of the deceased. In the case of Carroll v. Com., 83 S.W. 552, 26 Ky. Law Rep. 1083, the court said:
The attorney's remarks to the jury and his acts as herein referred to, under no circumstances, could be prejudicial to the rights of appellant.
It is insisted that there was both actual and implied bias in the minds of certain jurors who tried the case. Two of the jurors, both of them women, Eulanda Combs and Lony Calhoun, after they had rendered a verdict of guilty, filed their affidavits, stating that one Willie Sawyers, who was on the jury with them, influenced them to return a verdict of guilty, because he told them when they went to the jury room for deliberation that he knew all about the case, and what his verdict would be before he went into the jury room; that he discussed things in the jury room that were not brought out in evidence; that he said "he knew more about the case than the witnesses"; and that "the said juror undertook and did state to them that the defendant after the killing and after the deceased was brought to his home, went to another house and to bed and was very drunk, etc." Sawyers denied making any such statement.
It is an established rule of law that "a juror can not be examined to establish a ground for a new trial, except it be to establish that the verdict was made by lot." Section 272, Criminal Code of Practice. The verdict of jurors cannot be impeached in that way. Wolf v. Com., 214 Ky. 544, 283 S.W. 385; Salyers v. Com., 229 Ky. 153, 16 S.W. (2d) 509; Mills v. Com., 223 Ky. 165, 3 S.W. (2d) 183, and cases cited therein. That alleged error is ungrounded. It is further claimed that the verdict of Lony Calhoun, one of the same jurors referred to, was brought about on account of the relationship to the deceased. To support that contention the affidavit of one John Hale is filed, which is as follows:
"The affiant, John Hale, says that Denver Calhoun, husband of Lona Calhoun, who served as a juror upon the trial of Kile Davis for the killing of Woodrow Allen, is an uncle of Wilts Noble and that Wilts Noble is the husband of Millie Allen, mother of the deceased, Woodrow Allen."
From that affidavit it is difficult for us to conclude whether there is any relationship either by consanguinity or affinity. Section 210 of the...
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Shelton v. Commonwealth
...Booth and Madeline Wells being shown the coat and identifying it in the presence of the jury as the coat of defendant. Davis v. Com., 271 Ky. 180, 111 S.W. (2d) 640. In the closing argument the attorney representing the commonwealth in commenting on defendant's (evidently in answer to the a......