Frasure v. Commonwealth of Kentucky

• Decision Date: 30 September 1932
• Citation: 245 Ky. 127
• Parties: Frasure v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

245 Ky. 127

Frasure v. Commonwealth.

Court of Appeals of Kentucky.

Decided September 30, 1932.

1. Homicide. — In prosecution against wife for shooting and killing her husband, involving issue of self-defense, evidence held to make case for jury.

2. Homicide. — In prosecution against wife for killing husband, admitting in evidence isolated instances of wife's meretricious conduct with other men for purpose of showing motive held reversible error.

Evidence consisted of testimony that on one occasion accused had been seen with a man in an automobile parked on roadside, testimony of another man that before homicide he had spent night with accused in certain hotel, and of another man's testimony of improper relations with accused on single occasion. Such isolated acts of matrimonial infidelity, even if true, were inadmissible because irrelevant and not tending to establish her preference for any man other than her husband so as to indicate that she might desire to put husband out of the way.

3. Criminal Law. — It is improper to prove that accused committed other crimes having no connection with one under investigation.

Appeal from Floyd Circuit Court.

W.A. DAUGHERTY for appellant.

BAILEY P. WOOTTON, Attorney General, and H. HAMILTON RICE, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY DRURY, COMMISSIONER.

Reversing.

Alice Frasure married George Frasure October 17, 1917, and on Saturday September 19, 1931, she slew him. Upon her trial, under an indictment, charging her with murder, her plea of self-defense was not accepted by the jury, she was found guilty of manslaughter, and her punishment fixed at 18 years in the penitentiary.

These two have had a tempestuous married life. During the latter part of it the husband devoted much of his time to the sale and consumption of intoxicating liquor. He was a large man, and, when drunk, he was very cruel to her. Witness after witness for the commonwealth tell of hearing him beating her, and of her begging him to desist. They tell of seeing bruises on her body caused thereby, of seeing him beating her and kicking her, that they fought pretty regularly, that they saw her head bloody, saw her nose bleeding, saw her beaten up and bleeding, saw her clothes torn off of her, saw her run out of the house bleeding, etc. The witnesses for the defense give yet more gruesome accounts, but this is bad enough. He was accustomed to call her a whore, a bitch, and other such names. After she left home on Tuesday before the killing, he said he was going to make his yellow headed bitch come back.

The cause of all this was the man's inordinate jealousy, one human trait of which we had something to say in Sales v. Sales, 222 Ky. 175, 300 S.W. 354, in which we quoted what Solomon said about it, an expression that in some translations reads: "Jealousy is hard as hell." She must have found it so. The anguish of spirit that must have been hers can better be envisaged than described, so it is left to the imagination of the reader.

Early on the day of the homicide he brought some material and left it with her, at the home of her sister, out of which she was engaged in making some waists for their children when about 11 a.m. he came rushing back in a rage with a pistol in his hand, announcing that he had come to make her go home, and firing off his pistol to emphasize his words. Into the house he charged, punching and striking his wife with the pistol and snapping it at her. Mrs. Turner (his wife's sister) fled the scene. Neighbors took alarm, and began telephoning for the officers. His wife began to bundle up her things and to carry them out on the porch, he followed her about, continuing to strike her and punch her with the pistol, to snap it at her, and, when it failed to fire, he sat down on the porch and began an effort to get it to fire, telling his wife that, when he got it fixed, he was going to kill her, whereupon she got her sister's pistol out of her sewing machine drawer and shot him. After he had fallen and his wife was engaged in bathing his face and working with him, he said: "You old whore you are the cause of it all and I hope they prosecute you to the end."

For reversal of this judgment, she argues that she was entitled to a directed acquittal, but, as there was some evidence her husband had given her his pistol before she shot him, the case was properly submitted to the jury.

She contends the court erred in admitting evidence against her. This consists in the admission of evidence that she had been seen with a man in an automobile...