Fry v. Commonwealth
| Citation | 259 Ky. 337 |
| Parties | Fry v. Commonwealth. |
| Decision Date | 14 May 1935 |
| Court | United States State Supreme Court — District of Kentucky |
3. Criminal Law. — Where sentence for life in state reformatory for an alleged bank robbery with a pistol was within limits prescribed by statute for such offense, Court of Appeals would not set aside conviction on ground that it amounted to "cruel punishment" (Ky. Stats., sec. 1159, as re-enacted by, and sec. 1159a, as re-enacted and amended by, Acts 1934, c. 52; Constitution Ky., sec. 17; Constitution U.S. Amend. 8).
4. Witnesses. — Defendant testifying on his own behalf may be impeached by proof of contradictory statements, or by evidence that his general reputation for untruthfulness or immorality renders him unworthy of belief, but not by evidence of particular wrongful acts, except that it may be shown by examination of a witness, or by record of a judgment, that defendant has been convicted of felony.
5. Criminal Law. — Evidence admitted to impeach defendant testifying on his own behalf should be restricted to such purpose by means of admonition to jury, but failure to give admonition is not reversible error, in absence of request therefor.
6. Witnesses. — Where defendant testifies on his own behalf, it is improper to cross-examine him as to a particular act or crime, or as to whether he has been indicted or arrested for a particular offense, or as to any fact which is collateral and irrelevant to issue, merely for the purpose of contradicting him by other evidence and discrediting his testimony in case he denies the facts.
7. Witnesses. — In prosecution for bank robbery by means of a pistol, cross-examination of defendant testifying on his own behalf as to whether he had previously been indicted held improper (Ky. Stats., sec. 1159, as re-enacted by, and sec. 1159a, as re-enacted and amended by, Acts 1934, c. 52).
8. Witnesses. — In prosecution for bank robbery by means of a pistol, cross-examination of defendant testifying on his own behalf as to acquaintance with certain persons, visits to certain places, and admission of testimony to rebut defendant's testimony given over objection, held improper (Ky. Stats., sec. 1159, as re-enacted by, and sec. 1159a, as re-enacted and amended by, Acts 1934, c. 52).
9. Robbery. — Identifying testimony that to best of witness' knowledge, defendant was the man who had participated in bank robbery by means of a pistol, and that witness felt sure and satisfied in her own mind of the facts, though both witnesses admitted that they might be mistaken, held competent, but not testimony that defendant resembled bank robber previously unknown to witness (Ky. Stats., sec. 1159, as re-enacted by, and sec. 1159a, as re-enacted and amended by, Acts 1934, c. 52.)
10. Criminal Law. — It is general knowledge that bank robbery by means of a pistol in rural community generates great prejudice against person accused of crime, and that such prejudice would not have abated before trial begun hardly two weeks later (Ky. Stats., sec. 1159, as re-enacted by, and sec. 1159a, as re-enacted and amended by, Acts 1934, c. 52).
11. Robbery. — Conviction of bank robbery by means of a pistol upon identification of a few witnesses whose observation of bank robbery was not made under conditions conducive to exactness held palpably against weight of evidence, where witnesses to alibi included numerous persons who testified positively to defendant's presence at home in another state before, at, and after time of robbery (Ky. Stats., sec. 1159. as re-enacted by, and sec. 1159a, as re-enacted and amended by, Acts 1934, c. 52).
12. Criminal Law. — Instructions should be based on the evidence and should suit the case in hand.
13. Robbery. — That defendant charged with bank robbery by means of a pistol denied the charge held not to have entitled him to instruction fixing penalty for bank robbery where not committed by means of a pistol (Ky. Stats., sec. 1159, as re-enacted by, and sec. 1159a, as re-enacted and amended by, Acts 1934, c. 52).
Appeal from Logan Circuit Court.
HUBERT MEREDITH for appellant.
BAILEY P. WOOTTON, Attorney General, and RAY L. MURPHY, Assistant Attorney General, for appellee.
Reversing.
In 1893, the Legislature enacted section 1159, Kentucky Statutes (), which fixed the punishment of the common-law crimes of robbery and burglary of confinement in the penitentiary at not less than two nor more than ten years. In 1904, it enacted section 1159a (Acts 1904, c. 43, p. 117), prescribing the punishment for same crimes, committed by the means of explosives or any other force, at not less than two nor more than twenty years at confinement in the penitentiary.
The act of 1934 (chapter 52) merely re-enacted section 1159. It re-enacted in its entirety section 1159a with this addition:
"That if any person shall commit acts of robbery, burglary as defined in sections 1159 or 1159a, robbery of bank or safe, and in committing said act or acts shall use or display any pistol, gun or other firearms or deadly weapon of any character in so doing; upon conviction such person shall be sentenced to death or life imprisonment in the discretion of the jury," etc.
The grand jury of Logan county indicted Richard Roe, alias Elmer Fry, under the latter clause of this section (1159a), charging that he had committed the crime of robbing a bank by "unlawfully, willfully and feloniously, and by force and violence and by the use and display of a deadly weapon, firearms, to-wit; a pistol." On a trial to a jury he was convicted and his punishment fixed at confinement in the state reformatory for the period of his natural life.
He is here urgently insisting that the title of the act is within the inhibition of section 51 of the State Constitution. The former reads:
"An Act to amend and re-enact Sections 1159 and 1159a, Carroll's Kentucky Statutes, prescribing punishment for robbery or burglary, robbery of bank or safe, or for having burglarious tools, the use of fire arms in committing any of said acts and knowingly giving protection or comfort to any person committing these acts." Acts 1934, c. 52.
The general rules for amending laws by title are so familiarly and generally known, it is unnecessary to reiterate them. For an accurate statement of them, see Board of Penitentiary Com'rs v. Spencer, 159 Ky. 255, 166 S.W. 1017. An examination of the title and the context of the act, in the light of the rules therein stated, is convincing that Fry's objection to the title is not meritorious.
He argues that the statute under which he stands convicted is within the prohibition of section 17 of our Bill of Rights. He does not dispute that the punishment by death or confinement in the penitentiary for life, in a proper case, is not "cruel punishment," within the prohibition of this section of our Bill of Rights, or within the Eighth Amendment to the Constitution of the United States; but he contends that the death penalty is excessive or cruel in view of the degree of the crime of which he is convicted.
Much difficulty has been expressed by the courts of the country in attempting to define the scope of these constitutional provisions. It is the thought of some that they are not a limitation of legislative discretion in determining the severity of punishment. Others view them as referring to the mode of the infliction of the punishment. Aldridge v. Com., 2 Va. Cas. (4 Va.) 447; Commonwealth v. Hitchings, 5 Gray (Mass.) 482; Sturtevant v. Commonwealth, 158 Mass. 598, 33 N.E. 648; State v. Williams, 77 Mo. 310; Territory v. Ketchum, 10 N.M. 718, 65 P. 169, 55 L.R.A. 90; Commonwealth v. Evans, 33 Mass. (16 Pick.) 448; Wilkerson v. Utah, 99 U.S. 130, 25 L. Ed. 345; In re Kemmler, 136 U.S. 436, 10 S. Ct. 930, 34 L. Ed. 519.
Still others are of the thought they are broad enough to confer upon the courts the power to review legislative discretion concerning the adequacy of punishment. State v. Becker, 3 S.D. 29, 51 N.W. 1018; In re McDonald, 4 Wyo. 150, 33 P. 18; In re Bayard, 25 Hun (N.Y.) 546, 63 How. Prac. 73; Thomas v. Kinkead, 55 Ark. 502, 18 S.W. 854, 15 L.R.A. 558, 29 Am. St. Rep. 68; see, also, dissenting opinions of Justices Field, Harlan and Brewer in O'Neil v. Vermont, 144 U.S. 323, 12 S. Ct. 693, 36 L. Ed. 450.
We have adopted the rule that the fixing the penalties for crimes is a legislative function; and whatever constitutes an adequate punishment is a matter of legislative judgment and discretion. We have steadfastly declined to interfere therewith. Since the sentence here imposed is within the limits prescribed by the statute for the crime committed, we decline to accept the view it is cruel punishment. For the most recent statement of our views, see Crutchfield v. Commonwealth, 248 Ky. 704, 59 S.W. (2d) 983. With these questions disposed of, we are confronted with the difficult and perplexing one, Is the verdict against the evidence? To dispose of it requires a patient, careful, painstaking, and extended review and analysis of the evidence, which we shall now undertake.
Around 7:30 o'clock, Saturday morning, the 22d day of September, 1934, at Russellville, Logan county, Ky., as Tom Garrison finished "cleaning up"...
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