Donehy v. Commonwealth

• Decision Date: 31 May 1916
• Parties: DONEHY ET AL. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

186 S.W. 161

170 Ky. 474

DONEHY ET AL. v. COMMONWEALTH.

Court of Appeals of Kentucky.

May 31, 1916

Appeal from Circuit Court, Kenton County, Criminal, Common Law, and Equity Division.

Richard Donehy and another were convicted of murder, and they appeal. Affirmed.

O. M Rogers and R. S. Holmes, both of Covington, for appellants.

M. M Logan, Atty. Gen., and D. O. Myatt, Asst. Atty. Gen., for the Commonwealth.

TURNER J.

In August, 1915, Elmer C. Matthews was a railroad policeman in the employ of the Cincinnati, New Orleans & Texas Pacific Railway Company. He had been appointed and commissioned under the provisions of section 779a, Kentucky Statutes, and as such officer was clothed with the power and authority of a sheriff upon the trains of the company or about its depots. On the 18th day of August early in the afternoon there was made up in Cincinnati by the Cincinnati, New Orleans & Texas Pacific Railway Company a freight train which proceeded across the river on its south-bound journey; at Ludlow immediately across the river from Cincinnati this train was boarded by Matthews, the railroad policeman, and when the train got a short distance south of Ludlow, he discovered in one of the gondola cars of the freight train, which was loaded with gas pipe, two negro men, afterwards identified as the appellants, Donehy and Prather. The train at the time was going up a steep grade and running at the rate of only from 4 to 10 miles an hour. Fleming the brakeman was then on the same car that Donehy and Prather were riding in, and Matthews boarded the car at the northeast corner. As he did so, Donehy jumped up, whereupon Matthews asked where they were going when one of them said they were going "down the road," and they were then informed by Matthews that they could not ride on that train. Donehy, as he got up, had his hand in his right coat pocket on his pistol. Matthews asked him to take his hand out of his pocket, and he refused, and Prather at about that time said, "Wait a minute; he is not going to put you off." Matthews then advanced toward Donehy with his pistol presented at him, and demanded that he take his hand out of his pocket, and Donehy still refused, and when Matthews got up to where Donehy was, he grabbed hold of the hand which he had in his pocket on the pistol, and struck him with his pistol on the left side of the head, and Donehy with his left hand grabbed Matthew's right hand. Fleming started to go to the assistance of Matthews when Prather fired twice at him, whereupon Fleming, being unarmed, jumped off the car. Just after he jumped off the car he heard seven, eight, or ten shots, ran along the side of the train, and got on a car further forward, when he looked back and saw the two negroes leaving the train going in a westerly direction. The body of Matthews was found in the car with four bullet holes in his back and two in his right side, having been instantly killed. Several months later the two appellants were arrested and indicted, charged with the murder of Matthews, and upon their joint trial were each found guilty and sentenced to confinement in the penitentiary for life, from which judgment they prosecute this appeal.

Their defense in the lower court was an alibi, they each claiming that they were not present in the car at the time, and that they were not the men who engaged in the difficulty with Matthews. It is sufficient to say on this subject that the plea was a complete failure. They were identified positively by Fleming, the brakeman, by a farmer who saw them a short distance from the train just after they had left it, and whom they told they had been fired upon by a detective. They were identified by the man who set them across the Ohio river that afternoon, and in addition to all of this there was the evidence of three or four witnesses showing certain admissions by one or both of them.

The appellants, however, are relying upon five grounds for reversal: First, because the attorney for the commonwealth in his statement to the jury failed to state what was the plea of the defendants; second, that there was no evidence authorizing an instruction on murder; third, that the instruction on self-defense was erroneous; fourth, because of the failure of the court to give the whole law of the case; and, fifth, because the sheriff and his deputies during the trial brought appellants into and took them from the courtroom handcuffed in the presence of the jury.

1. On the first proposition the record shows that the defendants were arraigned by the clerk reading to them the indictment, after which they were each asked for their plea, and they each entered a plea of not guilty, whereupon the attorney for the commonwealth read the indictment to the jury, but failed to state to the jury that the defendants pleaded not guilty. Section 219 of the Criminal Code of Practice requires the clerk or the attorney for the commonwealth to read to the jury the indictment and state the defendant's plea, and while this provision has been held to be mandatory, a substantial compliance with its provisions only is necessary. It is true that literally neither the clerk nor the attorney for the commonwealth stated the plea of the defendants to the jury, but they themselves, after the reading of the indictment by the clerk and before the statement of the commonwealth's attorney, entered in the presence of the jury their plea of not guilty. The purpose of this Code provision is to inform the jury at the very inception of the trial of the nature of the charge and the plea of the defendants, and when this has been done in the manner indicated, the Code provision, while not literally followed, has been sufficiently complied with. Combs v. Commonwealth, 104 S.W. 270, 31 Ky. Law Rep. 822; Meece v. Commonwealth, 78 Ky. 586; Howard v. Commonwealth, 67 S.W. 1003, 24 Ky. Law Rep. 91.

2. The second contention of appellants that there was no evidence justifying the giving of an instruction on murder is without merit. Matthews was an officer, and that appellants knew him to be such is apparent. He had on his badge, and they immediately after the shooting,...