Ford v. Commonwealth

• Court: Kentucky Court of Appeals
• Writing for the Court: RICHARDSON, Justice.
• Citation: Ford v. Commonwealth, 259 Ky. 492, 82 S.W.2d 785 (Ky. Ct. App. 1935)
• Decision Date: 21 May 1935
• Parties: FORD v. COMMONWEALTH.

82 S.W.2d 785

259 Ky. 492

FORD v. COMMONWEALTH.

Court of Appeals of Kentucky

May 21, 1935

Appeal from Circuit Court, Monroe County.

Claud Ford was convicted of voluntary manslaughter, and he appeals.

Affirmed.

Will M Graham, of Hodgenville, and C. C. Crabtree, of Tompkinsville for appellant.

Bailey P. Wootton, Atty. Gen., and Ray L. Murphy, Asst. Atty. Gen for the Commonwealth.

RICHARDSON Justice.

From a judgment sentencing him to the penitentiary for three years and one day for the crime of voluntary manslaughter, Claud Ford appeals, insisting he is entitled to a reversal because of the absence of evidence showing the venue; proceedings were had in his and his counsel's absence; and the verdict of the jury is flagrantly against the evidence.

It is true the evidence fails to show in express terms that the offense was committed in Monroe county, Ky.

"The rule is that it is not necessary to show by direct evidence that the crime occurred in the county, but that this fact may be established by proof of facts and circumstances from which it may be inferred. Fletcher v. Commonwealth, 210 Ky. 71, 275 S.W. 22; Stubblefield v. Commonwealth, 197 Ky. 218, 246 S.W. 444. While the jury is not presumed to know the location of particular homes, Wilkey v Commonwealth, 104 Ky. 325, 47 S.W. 219, 20 Ky. Law Rep. 578; Warman v. Commonwealth, 193 Ky. 701, 237 S.W. 378, it is presumed to have some knowledge of local geography, such as the location of towns, precincts, creeks, and the like, Commonwealth v. Patterson, 8 S. W. 694, 10 Ky. Law Rep. 167; Hays v. Commonwealth, 14 S.W. 833, 12 Ky. Law Rep. 611. Following this rule, evidence has been held sufficient to take the case to the jury, where it showed that the offense occurred at 'The "Old Tub Fowler Distillery,"' Keefe v. Commonwealth, 175 Ky. 51, 193 S.W. 645, or 'at or near the "Greenbrier Spring," ' Kennedy v. Commonwealth, 100 S.W. 242, 30 Ky. Law Rep. 1063, or 'at the "mouth of Buckhorn," and at "Jones' and Field's storehouses,"' Combs v. Commonwealth, 25 S.W. 592, 593, 15 Ky. Law Rep. 659.'' See Nelson v. Commonwealth, 232 Ky. 568, 24 S.W.2d 276, 277.

This excerpt is sufficient to show that this court has continuously held that "slight evidence will be sufficient to sustain the venue and slight circumstances from which the jury might infer the place where the crime was committed are sufficient." And it is only where there is neither direct nor circumstantial evidence of venue that we will reverse a judgment because of the failure of proof, establishing it. Warman v. Commonwealth, 193 Ky. 701, 237 S.W. 378; Wilkey v. Commonwealth, 104 Ky. 325, 47 S.W. 219, 20 Ky. Law Rep. 578; Justice v. Commonwealth, 220 Ky. 209, 294 S.W. 1046. When the evidence in this case, showing venue, is measured to these principles, it is apparent it is adequately established.

It shows that the accused and his codefendants were at the "Red Stable," Tompkinsville, Ky. where a number of them drank whisky out of a pint bottle; one of them had a quart bottle containing "a chaser." From this point they passed the office of Dr. Duncan going to a bridge at a creek. From this point to the place where Sam Hammer received the fatal blow which ultimately caused his death, the parties traveled on foot. At and during the time they were making this short distance, Clay Ford and Sam Hammer engaged in three distinct fist fights. At the conclusion of the last one, it was discovered Clay had lost his cap, when some one of those present endeavored to find it for him. While Clay Ford and Hammer engaged in their last fight, Judge Murphy, from his front porch, heard the noise thereby created. Within a moment thereafter, he heard a fight between five or six individuals, between his home and that of Andrew Ford. The time in which these parties traveled the distance from the "Red Stable" to the place where Hammer received a mortal wound, together with the attending facts and circumstances, sufficiently establish the venue. Under the instructions of the court, the jury was required to believe that the crime was committed in Monroe county, before it could find Claud Ford guilty. Under the proven facts, it was justified in finding that the offense was committed in Monroe county. Pickerel v. Commonwealth, 30 S.W. 617, 17 Ky. Law Rep. 120; Combs v. Commonwealth, 25 S.W. 592, 15 Ky. Law Rep. 659; Stubblefield v. Commonwealth, 197 Ky. 218, 246 S.W. 444; Kennedy v. Commonwealth, 100 S.W. 242, 30 Ky. Law Rep. 1063; Fletcher v. Commonwealth, 210 Ky. 71, 275 S.W. 22; Nelson v. Commonwealth, supra.

After the case was submitted to the jury, it appeared in open court at a time the accused and his counsel were absent, and inquired of the court "if a punishment of two years and one day was inflicted, would the defendant be compelled to serve the full time fixed in the verdict." The bill of exceptions discloses the court made no response to its inquiry. Later, it returned into court a verdict fixing the punishment at three years and one day in the penitentiary.

Ford argues that it is thus shown that section 249 of the Criminal Code of Practice was violated, and such violation entitles him to a reversal. Section 249 reads: "After the jury retires for deliberation, if there be a disagreement between them as to any part of the evidence, or if they desire to be informed on a point of law, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the counsel of the parties."

The argument that the jury merely propounding the question to the court constitutes a violation of section 249, is extremely technical. It is true, if the court had responded to the inquiry before doing so, it would plainly have been his duty to comply with this Code provision, and, if the defendant and his counsel were absent, have them present. Puckett v. Commonwealth, 200 Ky. 509, 255 S.W. 125, 34 A. L. R. 96. Since the record discloses that the court in no way disregarded this Code provision, the accused may not, in the circumstances, invoke it as a ground of reversal.

A consideration of the argument that the verdict of the jury is flagrantly against the evidence requires a review of its salient points.

The accused and his codefendants, except Clarence Thompson completely exonerate him of the charge of which he was convicted. Their testimony shows that Clarence Thompson, after the last fight of Clay Ford and Sam Hammer, accompanied Sam Hammer in...