Fletcher v. Commonwealth

• Decision Date: 09 June 1931
• Citation: 39 S.W.2d 972,239 Ky. 506
• Parties: FLETCHER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

39 S.W.2d 972

239 Ky. 506

FLETCHER v. COMMONWEALTH.

Court of Appeals of Kentucky

June 9, 1931

Appeal from Circuit Court, Knox County.

William Fletcher was convicted of murder, and he appeals.

Reversed.

R. L Pope, of Knoxville, Tenn., C. B. Upton, of Williamsburg, and J. B. Campbell, of Barbourville, for appellant.

J. W Cammack, Atty. Gen., and Jas. M. Gilbert, Asst. Atty. Gen for the Commonwealth.

STANLEY C.

In the early morning of Monday, July 21, 1929, neighbors found the dead bodies of James Corum, aged about 78 years, and his wife, Malissa Corum, in their cottage home in the village of Artemus, Knox county. Their mouths were stuffed with rags extending down their throats. James Corum had been shot and choked. It appears also that the victims had been struck with an iron bar found in the room. Their trunk had been torn open and the room ransacked. Disorder indicated that a desperate struggle had taken place. The evidence is pretty conclusive that the murder occurred about midnight, Saturday, January 19th. It was generally reputed in the country that these old people had a considerable sum of money in their room, and the motive was unmistakably robbery.

Shortly thereafter several persons were arrested charged with the crime, including Robert Fletcher and Dewey Bain, William Fletcher, a brother of Robert, was indicted with them for the murders.

In January, 1930, the appellant, William Fletcher, was arrested in Jasper, Fla., and was brought to trial at the June term, 1930, on the indictment for the murder of James Corum. Upon conviction he was sentenced to life imprisonment. The evidence against the accused was circumstantial, supported by testimony of admissions of having committed the crime. The evidence in defense was that the accused on the night of the murder was in Lexington, where he had been staying. Alibis were also shown for the other two men with whom he was charged with having entered into a conspiracy to commit the crime. It is not necessary to relate the voluminous evidence, it being sufficient for the purposes of this opinion to say that under it the jury was authorized to return a verdict of guilty.

The appellant claims that he did not have a fair trial, and numerous errors of law are assigned in his plea for a reversal of the judgment. They will be stated as disposition is made of them respectively.

1. At the calling of the case a motion was made to have a venire summoned from another county on the ground that it was impossible for the defendant to secure a jury free from bias in Knox county because of the widespread interest and intense opposition. Section 194, Criminal Code of Practice. It was also shown by the affidavits filed in support of the motion that there had been three trials growing out of the murder, two of the defendant's brother, and one of Dewey Bain. One of those juries had been chosen from Knox county, one from Clay county, and the other from Whitley county. This is a matter resting in the discretion of the trial judge, and if he has abused that discretion, under the terms of section 281, Criminal Code of Practice, his action is not subject to review by this court. Neal v. Commonwealth, 233 Ky. 533, 26 S.W.(2d) 23. It is different where the order is with reference to a change of venue, as this court does have the right to review such action. The cases cited by the appellant relate to such an order and are therefore not in point.

2. After the twelve men had been accepted by both the commonwealth and the defendant, for some reason not manifested in the record, the trial of the appellant was suspended and another murder case tried. Six of the panel which had been chosen were used in that trial and were separated from the others for a day and a half and kept at a different place in the city. The defendant promptly filed a vigorous motion to discharge the jury and supported it with affidavits. The facts thus displayed were in no way controverted. Indeed, the order of court filing the motion declares that they did exist and also that the motion was made before the jury was sworn.

It is difficult to understand the action of the trial court, which was in direct violation of section 244, Criminal Code of Practice, providing that on the trial of offenses punishable capitally or by life imprisonment the jurors "after they are accepted" shall be kept together.

We have recently had presented quite a similar condition and held it to be reversible error to suspend a murder trial and, over objection, use some of the jury engaged in it in the trial of another case. Summers v. Commonwealth, 236 Ky. 499, 33 S.W.(2d) 594. The only difference between that case and this situation is that in the former the jury had been sworn and had not in this case, although, as stated, they had been accepted by both sides. As noted, the Code uses the word "accepted" in establishing the period or time after which the jury must be kept together. In Bowman v. Commonwealth, 146 Ky. 486, 143 S.W. 47, there was a separation of the jury after they had been accepted by the commonwealth but not by the defendant. The court held that in such a situation the error could not be treated as a cause for reversal. As was there indicated, it is the better practice in felony cases, and particularly these in which the death penalty may be inflicted, to keep the jurors together at all times after they have qualified for jury service, even though they have not been definitely accepted by both sides.

Moreover, the six men used on this trial were taken to the boarding house of a witness for the commonwealth who was hostile to the defendant. They were in charge of a deputy sheriff who had manifested his hostility to the defendant, and it had been agreed that he should not be placed in charge of the jury during the trial. In Napier v. Commonwealth, 110 S.W. 842, 33 Ky. Law Rep. 635, it was declared improper to board a jury at the home of an attorney actively engaged in the prosecution, although at that time this court was without power to reverse the action of the trial court in overruling a motion for a new trial.

The Attorney General does not undertake to excuse the action of the trial court, but insists that the defendant waived the right to object, and that the terms of section 281 of the Criminal Code of Practice deny a right of review. The dates shown in this record indicate that the motion was seasonably made before the jury was sworn. We hardly see what other steps the defendant could have taken than those which he did take. The situation is different from that reported in many of our cases where timely objection was not made, of which Heck v. Commonwealth, 163 Ky. 518, 174 S.W. 19, is typical. This error did not relate to the choosing of the panel or the personnel of the jury. It was misconduct or dereliction on the part of the officers of the court and as such is reviewable. The error is sufficient itself to justify a reversal of the judgment.

3. At the same time the foregoing motion was made, another was filed asking the discharge of a certain named juror because of expressed bias, duly shown in affidavits. The facts alleged were not controverted. But the motion was overruled and, though an exception was reserved, the act of the court must be classed with those errors not reviewable under section 281 of the Criminal Code of Practice.

4. The record shows that the jury list drawn at the preceding term of court had been utilized at an intervening special term, and that on Sunday afternoon preceding the term at which the appellant was tried, the judge drew other names from the wheel case from which the jury trying the appellant was selected. Section 2247 of the Statutes mandatorily requires that the drawing of the jury list shall be done in open court, but this error is also to be classified among those coming within the purview of section 281, and hence cannot be held as a ground for reversal by this court.

5. Dan Lawson was brought from Jasper, Fla., to testify in the case and gave damaging evidence against the accused, to the effect that he had told him that he had committed this crime and that his brother and Bain were with him. The appellant was arrested at the instance of Lawson in his home where he was visiting. He had been paid $100 and indicated an expectation of collecting the balance of a $500 reward offered for the apprehension and conviction of the appellant. Lawson testified to having received by special delivery mail on January 10th a letter bearing a postmark showing it was mailed in Jasper, Fla., at 4 o'clock on that day. He was permitted to introduce this letter and it was read to the jury over the objections of the defendant. The communication is as follows:

"Dan--

I have just found out that you have crossed me up and had me arrested in your house. I am leaving in a few minutes with the Sheriff for Kentucky but I will come back and see you and I will see you before you see me. I am going to pay you off.

Bill

Remember that my buddies are still in Florida and watching you."

On cross-examination the witness stated that he had seen the defendant's handwriting, but said that he could not and would not state that it was in his handwriting, although it looked like it. He finally stated that in his opinion it was Fletcher's handwriting. This evidence fell far short of qualifying him to testify to the opinion. Anybody might have written the note. In the trial of Frasure v Commonwealth, 169 Ky. 620, 185 S.W. 146, 151, a witness was permitted to testify to the contents of a destroyed letter signed only by the surname of the accused, which he had received in the mail. The statement of this court concerning its erroneous introduction is pertinent: "Unless the contents of this supposed letter...