East v. Commonwealth
| Decision Date | 05 May 1933 |
| Citation | 249 Ky. 46 |
| Parties | East v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
4. Criminal Law. — Prosecuting counsel, whose question court declined to permit witness to answer, should not have propounded same question to subsequent witnesses.
5. Criminal Law. — Prosecuting counsel's propounding of question to defendant's witnesses as to whether they entertained bad feelings toward commonwealth's witness after court declined to permit previous witness for defendant to answer same question held not prejudicial to defendant.
6. Criminal Law. — Prosecuting counsel, in argument to jury, may present facts testified to and deduce all legitimate conclusions therefrom.
7. Criminal Law. — Prosecuting counsel has no right to vilify and abuse defendant or his counsel in argument to jury.
8. Criminal Law. — Prosecuting counsel has no right to argue or state in argument to jury facts not shown by, or deducible from, evidence.
9. Criminal Law. — Prosecuting counsel has no right intentionally and knowingly to misapply court's instructions to facts of case, so as to mislead jury into returning verdict not authorized thereby.
10. Criminal Law. — Prosecuting counsel's argument, referring to defendant in murder case as "young buck" and his witnesses as "vultures," held prejudicial misconduct (Criminal Code of Practice, secs. 340, 353).
11. Criminal Law. — Prosecuting counsel's statement in argument to jury that he often heard his preacher brother say that another preacher, testifying against defendant, was righteous, God-fearing man, held improper as embodying hearsay testimony first given in argument.
12. Criminal Law. — Prosecuting counsel's statement in argument to jury that he often heard his preacher brother say that another preacher, testifying against defendant, was righteous, God-fearing man, held prejudicial to defendant (Criminal Code of Practice, secs. 340, 353).
13. Criminal Law. — Prosecuting counsel's argument in murder trial that defendant's brother having brought on difficulty defendant could not claim self-defense, held improper as misapplication of unqualified self-defense instruction.
The evidence showed that defendant's brother fired the first shot in a previous fight, at which defendant was not present.
14. Criminal Law. — Prosecuting counsel's argument in murder trial that defendant's brother having brought on difficulty, defendant could not claim self-defense, on which court properly gave unqualified instruction, held prejudicial to defendant (Criminal Code of Practice, secs. 340, 353).
Appeal from Pulaski Circuit Court.
B.J. BETHURUM for appellant.
BAILEY P. WOOTTON, Attorney General, and FRANCIS M. BURKE, Assistant Attorney General, for appellee.
Reversing.
At about 8 o'clock p.m. on July 27, 1932, in front of a country church in Pulaski county, the appellant, Dick East, shot and killed Murphy Johnson. He was later indicted by the grand jury of that county charged with murder and on his trial he was convicted of voluntary manslaughter and punished by confinement in the penitentiary for seven years. On this appeal from the verdict and the judgment pronounced thereon three grounds are urged for a reversal, although a number of others are contained in appellant's motion for a new trial which the court overruled. Those others are expressly abandoned in brief of counsel for appellant, and which we are convinced was the correct course, since the record discloses they were and are without merit.
The three grounds argued in brief of appellant's counsel are: (1) The rejection of competent evidence offered by defendant; (2) repeated propounding of incompetent questions to witnesses by prosecuting counsel after the court had ruled that the testimony sought to be obtained was incompetent; and (3) erroneous and prejudicial remarks by the commonwealth's attorney in his closing argument to the jury. Before discussing and disposing of either of them, we deem it proper to make a brief and condensed statement of the general facts for the purpose of explaining our ultimate conclusion hereinafter stated concerning the merits of the argued grounds.
The killing occurred on a Wednesday night and a protracted meeting was being conducted in the church by a minister named Godsey. It began on the Sunday night previous. Appellant and his two brothers, Jim and Tom East, lived in the neighborhood and attended the services. Other attendants were the deceased and two brothers, and "Bunk" Hardwick and three of his sons. It was claimed that appellant, on some of the prior evening services, had disturbed the congregation and some one swore out a warrant for his arrest on that charge. It was arranged for a deputy sheriff by the name of Brown to execute the warrant by arresting appellant on the night of the shooting. Brown resided several miles from the church and on Wednesday afternoon at about 4 o'clock he appeared at the home of Hardwick where he remained until after supper and then walked with him and the members of his family, including the three sons, to the church, arriving there somewhere near 7:30 p.m. The preponderance of the testimony shows that Hardwick carried along with him his pistol, and expressed a willingness to aid and assist Brown in the execution of the warrant if his services were needed. It was shown that the Hardwick boys or some of them were also armed, but whether they became so equipped after they arrived at the church or before they came, is not clear. Within a brief time after the deputy sheriff and the Hardwicks arrived at the church some one informed him that Tom East, a brother of appellant, and the deceased, Murphy Johnson, were at the side of the church building engaged in a quarrel. Whereupon he approached them with Bunk Hardwick following him with his pistol in his hand. The officer admonished the participants in the heated argument to desist and to "Cut it out" or he would arrest them. Tom East then cursed the officer and told him to come no further or he (East) would kill him. About that time Bunk Hardwick fired two or more shots at Tom East, followed by others from the deputy sheriff, several of which took effect in his body and from which he later died. But before falling he fired several shots at Hardwick and the officer, hitting both of them and wounding them quite seriously. The officer crawled away in the darkness and was later found lying at the root of a tree, but Hardwick was not so disabled and he turned with his pistol on Jim East who had arrived in his automobile with his family about that time, and threatened to shoot him, and, according to the testimony of a number of witnesses, he actually fired his pistol at him. Mrs. Jim East, with a young baby in one arm, then grabbed Hardwick's pistol and begged him to not shoot her husband, as did the latter also, stating at the time that he was not armed. Such appeals, however, did not assuage the belligerent attitude of Hardwick, and Jim East joined his wife in her efforts to disarm him. In the meantime the parties had gotten from the side of the church where the first encounter occurred to its front where another battle occurred in which Murphy Johnson lost his life.
Appellant arrived at the church that night at an early hour and was in the building at the commencement of the services which had already begun when the first fight occurred in which Tom East lost his life. Three or four hymns had been sung before that fight commenced. Some horses were hitched at the immediate rear of the church building, one of which was appellant's. They were producing some noise to the disturbance of the preacher and the congregation, when he requested their owners to retire and remove them, and appellant was engaged in complying with that request when the first battle occurred. In returning from performing that task he passed by the prostrate body of his brother Tom, who was still alive and able to talk, and he picked up the pistol of his brother lying nearby and went around to where the second battle was in its formative stage. He inquired of Bunk Hardwick, who was yet belligerent, if he had shot his brother and he received a negative reply, with the statement that the deputy sheriff was the one who had done so. Appellant at that time had in his hand his brother's pistol and he and Hardwick agreed to make peace but as appellant turned to go away, Hardwick commenced firing upon him with one shot striking and wounding him. He then started to turn when his brother, Jim East, remarked: "Lookout Dick, Murphy Johnson is going to kill you." Immediately deceased shot appellant, inflicting another wound on his body, and that shot was followed by others, but almost instantly after being wounded by Johnson appellant turned and shot him one time, producing instant death.
The testimony heard at the trial fills some six or seven hundred pages of the record, and like all similar cases there are many contradictions found therein. The commonwealth introduced some eight or ten witnesses, who stated that Murphy Johnson had no pistol when he appeared upon the scene of the second battle in which he was killed, but a much greater number of witnesses testified that he did have one and fired it at the appellant as above stated. Some of the witnesses for the prosecution also stated that Jim East did call to appellant and warned him concerning the efforts of...
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