Fitzpatrick v. Commonwealth

• Decision Date: 02 October 1925
• Citation: 210 Ky. 385
• Parties: Fitzpatrick v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

210 Ky. 385

Fitzpatrick v. Commonwealth.

Court of Appeals of Kentucky.

Decided October 2, 1925.

1. Judges — Specification of Cases to be Tried by Special Judge in Letter from Governor Held Substantial Compliance with Statute. — Specification of cases in which special judge was to preside, in letter to him, signed by Governor and referring to accompanying commission, held substantial compliance with statute.

2. Criminal Law — No Error in Refusing Continuance for Absence of Counsel, where Defendant had Good Lawyers Present. — Where defendant had a number of good lawyers present, there was no error in refusing continuance because of absence of some of his counsel.

3. Criminal Law — Parol Testimony as to Official Character of Peace Officers Held Admissible in Prosecution of One for Murder. — Parol testimony as to official character of peace officers held admissible in trial of one of them for murdering one whom they were attempting to arrest.

4. Homicide — Testimony as to Conversation with Women Being Pursued by Defendant and Other Officers at Time of Murder Held Competent. — In prosecution of deputy constable for murder in attempting to arrest deceased, whom defendant and other officers met while pursuing two lewd women suspected of moonshining, witness' testimony that he stopped and talked with the women, and that they told him they had to go home as officers were after them, held competent as showing why they went home and explaining situation.

5. Homicide — Cross-Examination on Defendant Constable's Knowledge that he was Beyond Limits of Town at Time of Murder Held Improper. — In prosecution of deputy constable for murder in attempting, with another such officer and town marshal, to arrest deceased, cross-examination of defendant and his fellow officers, on fact that they knew they were beyond limits of town at time of homicide, held improper, as, their jurisdiction being coextensive with county, such evidence was immaterial.

6. Homicide — Evidence as to Statements to Defendant and Fellow Officers After Homicide, and His Instructions to Latter Held Admissible. — In prosecution of deputy constable for murder in attempting, with other officers, to arrest deceased, statements of persons who gave defendant and his fellow officers information after homicide, testimony that some one asked defendant to take him to station in his car, and defendant's instructions to other officers when he left them, held admissible as explaining why they went to different places, why defendant was absent when certain other things occurred, and why other officers did what they did while he was gone.

7. Criminal Law — Evidence of What was Said Admissible, if Necessary to Show Purpose of What was then Done. — Evidence of what was said at time is admissible, if necessary, to show purpose of what was then done.

8. Criminal Law — Proof of Deceased's Soberness Held Admissible in Chief. — In murder trial, court did not err in allowing Commonwealth to introduce in chief its proof that deceased was sober, though such evidence might have been admitted in rebuttal; matter being optional with Commonwealth.

9. Homicide — Testimony of Deceased's Wife that he was Sober and Had no Pistol When He Left Home Held Properly Admitted. — In murder trial, court properly allowed deceased's wife to state that her husband was sober when he left home and had no pistol, though that was 35 miles away and some time before shooting.

10. Criminal Law — Testimony that Deceased had Not Been Under Influence of Liquor for Year Rebuttable by Testimony as to Seeing Him Drunk Within Such Time. — In murder trial, testimony of deceased's wife in chief that he had followed drinking, but had not been under influence of liquor for year or more, may be rebutted by testimony as to seeing him drunk about a month before shooting.

11. Homicide — Testimony as to What Witness said to Defendant Morning After Homicide Held Inadmissible Except in Part. — In murder trial testimony as to what witness said to defendant on morning after homicide held inadmissible, except question whether deceased showed fight or had a gun and defendant's reply that if he had a gun defendant never saw it.

12. Witnesses — Cross-Examination of Eye-witness as to Reason for Presence and Acts Held Permissible to Show Bias. — Cross-examination of witness as to why he was present at time and place of homicide and did what he did held permissible to show his bias and affect weight of his testimony.

13. Criminal Law — Allowing Witness to Read Paper Not Proved Correct, nor Identified as Official Record of, Testimony on Former Trial, Held Error. — Permitting witness to read to jury paper purporting to be testimony of another on former trial, but not proved correct nor identified as official record, held error.

14. Witnesses — Foundation Necessary to Contradict Witness by Testimony as to Statements at Other Times Stated. — Before admitting testimony as to witness' statements at other times, differing from his testimony, witness should be asked if he made statement at time indicated and in presence of persons named.

15. Witnesses — Record May be Introduced to Rebut Witness' Testimoney as to Making Certain Answer on Former Trial. — Court should allow attorneys on either side to ask any witness if he had made certain answer on former trial and to read question and answers from record, which may then be introduced in rebuttal, when properly proved or certified, to show that witness did not then make such answer.

16. Witnesses — Question to State's Witness as to Whether he had been Convicted of Moonshining or was so Engaged at Certain Time Held Properly Excluded. — In murder trial, court properly refused to allow defendants to ask state's witness if he had been convicted of moonshining or was so engaged at time he testified to meeting deceased and another.

17. Homicide — Testimony as to Meeting Man and What he did Held Admissible to Identify Him as Deceased and Show Whether he was Drunk. — In murder trial, testimony of state's witness as to meeting man and what he did held admissible to identify him as deceased and show whether he was drunk.

18. Homicide — Testimony as to Deceased's General Reputation in Community Held Admissible. — In murder trial, witness' testimony that he knew whether deceased had general reputation in community as dangerous man when under influence of whiskey and what that reputation was, held admissible.

19. Homicide — Injury Must have Contributed to Deceased's Death to Convict. — To convict of homicide, injury inflicted by defendant must have contributed to deceased's death.

20. Homicide — Cause of Fall from Horse, Resulting in Injury from which Deceased Died, Held for Jury. — Whether deceased's fall from horse, resulting in injury to skull from which he died, was due to weakness from loss of blood from being shot in back by defendant, or horse's fright by automobiles, held for jury.

21. Homicide — Defendant Not Entitled to Peremptory Instruction, Though Fall Causing Injury from which Deceased Died was Not Due to Wound. — Defendant was not entitled to peremptory instruction in murder trial, even if deceased's fall from horse, causing injury from which he died, was not due to his being wounded, as defendant might be punished under indictment for unlawful shooting, though deceased did not die from wound.

22. Assault and Battery — Proper Instruction as to Offense and Punishment, if Deceased's Wound did Not Contribute to Fall Resulting in Fatal Injury, Stated. — In trial for murder of one dying from injury received as result of fall from horse after being shot, court should have told jury that, if wound did not contribute to fall, but shooting was not excusable, they should convict of willful shooting, if done willfully and with malice aforethought, and fix punishment at confinement in penitentiary for one to five years, or if not done with such malice, but in sudden heat and passion, at fine of from $50.00 to $500.00, confinement in jail for six months to one year, or both.

23. Homicide — Instruction Held Erroneous as Improperly Narrowing Defendant Officer's Right to Use Force in Arresting Deceased. — Instruction that, if deceased shot to kill defendant officer, not in necessary self-defense, while defendant was attempting, in good faith, to arrest him for drunkenness, he committed felony in defendant's presence, and latter was authorized to use force necessary "to overcome such resistance" to arrest, even to taking deceased's life, etc., held erroneous as improperly narrowing defendant's right by quoted words.

24. Homicide — Officer May Take Life of One Charged with Felony, if Absolutely Necessary to Effect Arrest or Prevent Escape. — Officer may take life of one charged with felony, if absolutely necessary to effect his arrest or prevent his escape from custody.

25. Criminal Law — Argument Reflecting on Actions and Motives of Defendant and Fellow Officers Before Homicide Held Improper. — In murder trial, argument of state's attorney, reflecting on defendant peace officer for leaving his family and going with fellow officers, on their motives in following lewd women they were pursuing when they met deceased, and on defendant's being appointed a deputy constable, held improper.

26. Criminal Law — Frequent Repetition of Questions to Defendant and Fellow Officers, as to Whether they had Warrant for Deceased's Arrest, etc., Held Prejudicial Error. — In trial of deputy constable for murder in attempting to arrest deceased, frequent repetition of questions to defendant and fellow officers as to whether they had warrant for deceased's arrest and had made affidavit against women they were following when they met deceased or sought to arrest them for walking streets, held improper and prejudicial.

27. Arrest — Arrest for Misdemeanor, Not Committed in Officer's Presence, Not Permitted by Statute. — Criminal Code of Practice, section 36, is peremptory, and does not allow peace...