Franklin v. Commonwealth

• Decision Date: 25 February 1892
• Citation: 18 S.W. 532,92 Ky. 612
• Parties: Franklin v. Commonwealth.
• Court: Kentucky Court of Appeals

18 S.W. 532

92 Ky. 612

Franklin v. Commonwealth.

Court of Appeals of Kentucky.

February 25, 1892

Appeal from circuit court, Cumberland county.

"To be officially reported."

Austin Franklin was convicted of murder, and appeals. Reversed.

Pryor J.

The appellant was indicted in the Metcalfe circuit court for the murder of Elisha Smith. The venue was changed to the Cumberland circuit court, where on the trial a verdict of guilty was returned, fixing his punishment at confinement in the state-prison for life. The prosecution has been pending for near ten years, with five jury trials, three of which were mistrials, and two resulting in a conviction for murder. The first conviction was set aside, and at a subsequent term a like conviction was had, from which this appeal has been taken.

Counsel for the accused has discussed the testimony at some length and if, as contended, the witnesses for the state, some of whom were eye-witnesses to the killing, are not to be believed, the verdict in this case should have been "Not guilty." The principal testimony for the prosecution comes from the three daughters of the dead man one of whom swears that she saw the accused with pistol in hand firing at her father, and, going to his relief, the old man exclaimed: "He has shot me to pieces;" and died in a few moments. His other daughters reached their father in a few moments after their sister, and he said to them that Austin Franklin shot him. These witnesses have been attacked in various ways, as being unworthy of belief. The one who says she saw the shooting is shown to be a common prostitute and to have made statements to divers persons to the effect that she did not know who shot her father. The other girls have made, as the testimony shows, many conflicting statements, directly at variance with their testimony on the trial, and some of them indicating a purpose to punish the accused, although they believed him innocent; in fact, the testimony impeaching the character of these girls is as strong as the defense could well have made it, and yet the jurors, who were the sole triors of the facts, believed their statements to be true, and evidently based their verdict of guilty on their testimony. It is difficult for a court not in the presence of witnesses, who are being examined in a case like this, to judge of the weight the testimony should have by reason of the conduct of the witnesses, and their manner of detailing the facts upon which the charge is based, and the more difficult to ascertain what importance should be attached to testimony introduced for the purpose of assailing the character of the witnesses on the adverse side, either by showing general bad reputation, or by proof of conflicting statements. The manner and bearing of the witnesses when under examination must necessarily impress the jury the one way or the other; and as this court is deprived of knowing the history of the witnesses, their manner and bearing when testifying, as such facts cannot well be spread on the record, the necessity arises for making, in this class of cases, the jury the sole judges of such questions; and, after a careful reading of the testimony, we are far from saying that the case shows an absence of proof authorizing the conviction. This case had its origin in the county of Metcalfe, and while the deceased was a man in the lower walks of life, and had but little personal influence, the accused was given a trial in an adjoining county, where he had every opportunity to disprove the charge made against him, and where no influences existed to prejudice his trial in any way. While the burden was on the state to show his guilt beyond a reasonable doubt, it appears that no one of the five...