Frazier v. Commonwealth

• Decision Date: 20 December 1918
• Parties: FRAZIER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

207 S.W. 13

182 Ky. 620

FRAZIER v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 20, 1918

Appeal from Circuit Court, Letcher County.

James H. Frazier was convicted of murder, and he appeals. Affirmed.

F Byrd, of Lexington, and Fields & Day, of Whitesburg, for appellant.

David Hays, of Whitesburg, Chas. H. Morris, Atty. Gen., Overton S Hogan, Asst. Atty. Gen., and R. Monroe Fields Commonwealth's Atty., of Whitesburg, for the Commonwealth.

SETTLE C.J.

The appellant, James H. Frazier, was tried and convicted in the court below under an indictment charging him with the murder of William Banks, and his punishment fixed by the verdict of the jury at confinement in the penitentiary for life. He was refused a new trial, and has appealed.

Before considering the grounds urged by his counsel for a reversal of the judgment, it will be proper to briefly state the material facts of the homicide. Appellant shot and killed Banks on the morning of November 9, 1917, in Whitesburg. The shooting was done with a "high-power" rifle owned by appellant and kept in his store. Immediately before the shooting, Banks came out of the courthouse in front of the rear door of appellant's store, and after pausing at the entrance for a moment, with his hand resting on a cement post of the courthouse, walked across the street in a direction that would have taken him away from the store. Appellant, who was standing in or near his rear store door, saw Banks come out of the courthouse, and at once secured his gun, returned to the store door, and shot at Banks, who was then about 75 yards from him and walking with his back toward him. The ball from the rifle entered the back of Banks and passed entirely through his body, producing immediate death. Although an examination was at once made of the body and clothing of Banks, no weapon was found. Appellant was not seen to fire the shot that killed Banks, but numerous witnesses testified as to various circumstances that strongly tended to show the shot came from the rear of his store; and shortly after the shooting a search of the store resulted in the finding, in a place of concealment, of the gun used in the shooting, the appearance of which furnished indubitable evidence of its recent use. Appellant did not at any time deny that he shot Banks, but did not admit that he had done so until after the finding of the gun.

The facts thus far stated are undisputed. However, the evidence did not stop with the proof of these facts. There was evidence introduced in behalf of the commonwealth for the purpose of showing a motive for the homicide, which conduced to prove an improper, if not criminal, intimacy between the appellant and Banks' wife, that finally led to a rupture of the friendly relations that had long existed between appellant and Banks, and later to a suit and judgment divorcing Banks and wife. The commonwealth's evidence also conduced to prove that after the happening of these events Banks brought an action in the Letcher circuit court seeking the recovery of large damages against appellant for the alienation of his wife's affection, which was dismissed upon the production in court by appellant of a writing so directing, purporting to have been signed or authorized by Banks, but the execution of which Banks thereafter denied, following the denial with an action in equity to set aside, on the ground of fraud, the judgment dismissing his suit for damages against appellant. The evidence further tended to prove that Banks was in Whitesburg on the day he was killed for the purpose of giving his deposition in that case, of which appellant, as defendant in the action, had received due notice.

The facts as to motive furnished by the foregoing evidence were in the main denied by appellant in testifying for himself, and additional evidence in his behalf, furnished by his own testimony and that of other witnesses, conduced to show that Banks bore him great ill will, and that, in addition to being at all times offensive in his demeanor toward appellant, he had threatened to kill him, and at one time shot and wounded him. In telling of the killing appellant said that, when Banks came out of the courthouse, he paused with his hand on the cement post, looked for a moment in the direction of his store door, and then turned and walked away with his back toward the store, whereupon appellant procured the gun, which was near at hand, and shot him. He did not say that, when standing in front of the courthouse and looking in the direction of his store, Banks assumed a bearing that indicated a belligerent state of mind, or that he was armed. He only claimed that he feared Banks was in Whitesburg to kill him, and would attempt to do so while there, and that his fears were superinduced by the previous threats and conduct of Banks and a former attempt of the latter to kill him.

We have read the evidence in this case, having in mind the claim made by appellant's counsel in argument, that the rupture of the friendly relations between appellant and Banks occurred after the latter was divorced by his wife, and that whatever intimacy there may have been between appellant and Mrs. Banks began since the divorce. We do not so understand the evidence. On the contrary, it is reasonably apparent from the evidence that, although himself a husband, appellant repeatedly called to see Mrs. Banks at her home before she was divorced from her husband and in the latter's absence, and also that the first difficulty between appellant and Banks took place before the divorce. We refer to the occasion when Banks, upon returning home, found appellant in a room with his wife, which so angered him that he drew a pistol on appellant and ordered him from the house. This occurrence was admitted by appellant,...