Ferguson v. Commonwealth
| Decision Date | 23 January 1931 |
| Citation | 237 Ky. 93 |
| Parties | Ferguson v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
2. Criminal Law. — Testimony that deputy sheriff, killed by defendant while at defendant's house for arrest of son, had a warrant, was competent.
There was no dispute that the officer had a warrant, but it was objected that the warrant should have been produced.
3. Homicide. — Evidence that defendant made threats against deceased and others held competent, but, if incompetent, too trivial to require reversal.
Witnesses testified that defendant made threats and, upon being asked who the threats were against, named deceased and two other persons. In the case of one of the witnesses, a further question whether the other men threatened had since been killed was excluded, and the jury was admonished to consider the testimony only as to deceased.
4. Criminal Law. — Instruction that fact was admitted was harmless, when the fact was shown without dispute.
Defendant was charged with killing deputy sheriff at defendant's house to arrest defendant's son. The court charged that it was admitted that deceased was a deputy sheriff and had a warrant for the son's arrest. There was no admission by defendant that deceased had a warrant, but the evidence that he did have it was abundant and was not disputed.
5. Homicide. — Instruction on self-defense, though improper in using word "escape," suggesting necessity of flight, held not prejudicial.
The instruction told the jury to find defendant not guilty on ground of self-defense, if there appeared to defendant, exercising a reasonable judgment, no other safe or apparently safe means to avert, or escape danger to himself or any member of his family, short of flight.
6. Homicide. — Affidavit of absent witnesses read in evidence, stating deceased was dangerous and violent man, justified evidence in rebuttal as to his good character for peace on trial for murder.
Appeal from Elliott Circuit Court.
JAMES CLAY for appellant.
J.W. CAMMACK, Attorney General, and GEORGE HUNT MITCHELL, Assistant Attorney General, for appellee.
Affirming.
Appellant was charged with the murder of Joe Carter, a deputy sheriff in Elliott county, Ky., and was convicted and his punishment fixed at life imprisonment. The homicide occurred in 1926, but appellant was not apprehended until about 1929.
The evidence presented by the commonwealth is to the effect that a warrant was obtained against Henry Ferguson, a son of appellant, charging him with housebreaking, and this warrant was placed in the hands of Joe Carter to execute. He summoned a posse of three or four men to go with him, and when he came to the home of appellant it was very early in the morning before the family had arisen. He sent two of his posse to the back door to prevent the escape of Henry Ferguson, and he rapped on another door demanding entrance and was bidden to enter. He and one of his posse went into the room and inquired of appellant as to the whereabouts of Henry. Appellant informed the deputy that Henry was in another room, and he found him there and told him that he had a warrant for his arrest. Henry made no objection and got out of the bed and partly dressed. He had a pistol, and when he went into the room where appellant was he carried the pistol with him and hung it on a nail in the wall. He sat down to put on his shoes. There was some talk, and the deputy and the man who was with him expressed the opinion that there was nothing in the warrant and that appellant need not feel apprehensive about it. Appellant had partly dressed and sat down to put on his shoes. He was under the pistol. The wife of appellant said to the deputy that she hoped he would not treat Henry as he had treated her son, Roscoe, and made the statement that when he had attempted to arrest Roscoe some time before he had shot at him and powder burned him. The deputy assured her that he had not done so. Appellant procured the pistol from the nail and put it in his lap, or on the chair, while he was putting on his shoes. When the deputy saw that he had the pistol, he told him to put it up, as he did not want any trouble there. Appellant applied an abusive epithet to the deputy and immediately fired the pistol, and the bullet found lodgment in the chest of the deputy, resulting in his death a little later. According to the testimony of the commonwealth, the shooting was unprovoked, and without the slightest justification.
Some of the witnesses for appellant testified that when the deputy told him to put up the pistol, he started towards him with gestures indicating that he was going to draw his pistol and that appellant fired the shot as he approached him. Appellant makes out a case for himself not materially different from that made out against him by the commonwealth. The jury was amply warranted in returning a verdict...
To continue reading
Request your trial