Davis v. Commonwealth

• Decision Date: 30 September 1924
• Citation: Davis v. Commonwealth, 204 Ky. 601, 265 S.W. 10 (Ky. Ct. App. 1924)
• Parties: DAVIS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

265 S.W. 10

204 Ky. 601

DAVIS v. COMMONWEALTH.

Court of Appeals of Kentucky.

September 30, 1924

Appeal from Circuit Court, Fayette County.

Sid Davis was convicted of murder, and appeals.Affirmed.

Taylor N. House and J. J. Winn, both of Lexington, for appellant.

Frank E. Daugherty, Atty. Gen., and Gardner K. Byers, Asst. Atty Gen., for the Commonwealth.

SANDIDGE C.

The appellant, Sid Davis, tried by a jury of the Fayette circuit court for murder, was found guilty, and his punishment fixed at death.He prosecutes this appeal from the judgment of the court imposing that penalty upon him.The reasons urged why appellant should be granted a new trial make it unnecessary to set forth in detail the facts and circumstances of the homicide, as given in evidence upon the trial.

As part of the case against him the commonwealth proved by Ben Jenkins that, after the homicide and while appellant was confined in jail prior to his trial, Jenkins, at his request and dictation, wrote for him the following letter:

"Lexington Ky. February 8, 1924.

Mr. Curley Level--Dear Sir: Just a few lines to ask you to do me a favor and I guess you know what that is.Well, I will tell you Curley, I want you to say that you seen John H. with a knife and saw him make a break at me.You can fix it up any way you want it.You can say he had a knife when he was _____.You can fix it up any way to help me out and I will pay you for it just as soon as I get out.If you want the money why I will pay you now, and if they ask you did you see Brother Tribble tell them no, you didn't see him at the time of the shooting, but you seen him after the shooting.Well Curley I will appreciate it if you will do that for me and keep your mouth shut.My trial is Monday morning at 9 ock.Well I guess I will close.Many thanks to you.

Yours truly, Sid Davis.

113 E. Short St., City."

Appellant contends that it was error to permit the letter to be read to the jury because it was not properly identified as having been written by him, or as being his act, and because in testifying about having written the letter the witness thereby incriminated himself.With reference to the letter Jenkins testified that appellant, who could neither read nor write, requested him to write it and told him what to write; and that after he had written it he read it to and delivered it to appellant to mail.The commonwealth also introduced as a witness Curley Level, to whom the letter was addressed, and proved by him that he received the letter by mail.Appellant stated that he could neither read nor write, but denied that he requested Jenkins to write the letter for him or that he knew anything about the letter having been written.We cannot understand what further testimony could have been offered by the commonwealth or what further testimony was necessary to identify the letter in question as coming from and being the act of appellant, and it speaks for itself as being an attempt by him to bribe the witness, Level.

Upon the trial of a criminal prosecution any conduct of the accused inconsistent with his innocence is admissible in evidence.As being inconsistent with his innocence, any attempt, whether by persuasion, bribery, or threat to induce a witness not to appear at the trial, or to appear and swear falsely for the accused, is admissible.16 Corpus Juris, 555;8 R.C.L. 189;Roberson's Kentucky Criminal Law and Procedure, vol. 2, § 965;Wilhite v. Commonwealth,203 Ky 543, 262 S.W. 949;Turpin v Commonwealth,140 Ky. 294, 130 S.W. 1086, 30 L.R.A. (N. S.) 794, 140 Am.St.Rep. 378;Sanderson v. Commonwealth,12 S.W. 136, 11 Ky. Law Rep. 341;Collins v. Commonwealth,12 Bush, 271;Adams v. People, 9 Hun (N. Y.) 89;State v. Rohfrischt,12 La. Ann. 382;Winchel v. Edwards,57 Ill. 41;Commonwealth v. Webster, 5 Cush. (Mass.) 316, 52 Am.Dec. 711;Commonwealth v. Brigham,147 Mass. 415, 18 N.E. 167.Appellant's contention that the letter was inadmissible is wholly without merit.

Equally unmeritorious is his contention that the letter was inadmissible because in testifying about having written it the witness incriminated himself.Without passing upon the question as to whether or not by his testimony the witness incriminated himself, it is sufficient to say that the privilege of refusing to testify was one personal to the witness and not one that could be claimed for the benefit of appellant.Having testified without claiming his privilege, the testimony, as shown above, was clearly competent against defendant.

The only other reason advanced as a cause for reversing the judgment herein is the complaint that in the presence and hearing of those who had been summoned for petit jury service (some of whom sat upon the jury that tried appellant), the judge of the court, in his charge to the grand jury, in describing conditions in Fayette county with reference to lawlessness, and especially with reference to the crime of murder and the crime of carrying concealed deadly weapons used such language, as, a...