Davis v. Commonwealth

• Decision Date: 17 December 1937
• Citation: Davis v. Commonwealth, 271 Ky. 180, 111 S.W.2d 640 (Ky. Ct. App. 1937)
• Parties: DAVIS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

111 S.W.2d 640

271 Ky. 180

DAVIS v. COMMONWEALTH.

Court of Appeals of Kentucky

December 17, 1937

Appeal from Circuit Court, Knott County.

Kile Davis was convicted of voluntary manslaughter, and he appeals.

Affirmed.

D Hollender Hall and J. C. Burnette, both of Hindman, for appellant.

Hubert Meredith, Atty. Gen., and W. Owen Keller, Asst. Atty. Gen for the Commonwealth.

BAIRD Justice.

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 clothes worn by the deceased were introduced as evidence with the view of showing the location of the wounds inflicted.They had been soiled with the blood of the deceased.It was proper to introduce them as evidence, but it is urged that the commonwealth's attorney erred to the prejudice of the appellant, because during his argument he held them before the jury.We do not think the defendant can complain of that act, because the commonwealth's attorney had the right to comment on the holes which had been produced by the knife in the hands of the appellant for the purpose of showing the jury that they sustained other testimony in the case.The clothes were part of the evidence."

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 Criminal Code of Practice provides that: "A challenge for implied bias may be made *** if the juror be related by consanguinity, or affinity."

Borrowing an expression that we find in the brief of the learned attorney for the commonwealth, we will say that "in this case the consanguinity is nebulous, and the affinity somewhat esoteric."

In the case of Cox v. Com.,255 Ky. 391, 74 S.W.2d 346, one juror was shown to be a second cousin of the wife of the brother of the deceased and his wife's uncle married a niece of the deceased.We decided that such relationship was not close enough to warrant a reversal.In that case the juror was related to the deceased by neither consanguinity or affinity.SeeWolfe v. Com.,229 Ky. 385, 17 S.W.2d 219, 64 A.L.R. 263;Sizemore v. Com.,210 Ky. 637, 276 S.W. 524.

It is insisted that the court erred in failing to instruct the jury to find the defendant not guilty, and that the verdict was not supported by either the law or the evidence and was so flagrantly against the law and the evidence as to show that it was the result of passion and prejudice.We will discuss those two questions together.A summary of the facts adduced by the commonwealth is necessary: The defendantBeckham Allen, accused with him, and Woodrow Allen were together on Thanksgiving Day, November, 1936; there was with them one Alonzo Shepherd.They were together about 4 o'clock at Henry Sparkman's who lived on what is known as Patton Fork, a tributary of Laurel Fork Creek.They came together from that place to W. M. Compton's store, after dark where they stopped.They were all drinking.Kile Davis purchased 50 cents worth of cartridges for a .38-caliber pistol.Beckham Allen tried to buy cartridges for a .32-caliber pistol, but failed to get any.They left the store, and Kile Davis and Woodrow Allen went on in front to the schoolhouse, at the mouth of Baker Creek, a tributary that runs into Laurel Fork.When they came to the schoolhouse they stopped and talked some.Alonzo Shepherd, who was along went on ahead to a foot log.He said he could not understand their conversation, but heard four shots fired from a pistol.He did not look back; paid no attention to the shots until he heard Beckham Allen say: "I wouldn't do that if I were you."He then saw Woodrow Allen and Kile Davis wrestling or something; thought they might be doing something, so he started back, and before he got to where they were, they all jumped up and ran up the hill to the road.Woodrow Allen caught hold of Beckham Allen...