Fuqua v. Commonwealth

• Decision Date: 22 April 1903
• Citation: 73 S.W. 782
• Parties: FUQUA v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

73 S.W. 782

FUQUA v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 22, 1903

Appeal from Circuit Court, McCracken County.

"Not to be officially reported."

Lon Fuqua was convicted of aiding and abetting a murder, and appeals. Reversed.

Moss &amp Moss, for appellant.

C.J Pratt and M. R. Todd, for the Commonwealth.

BARKER J.

Spot Polk was indicted by the grand jury of the county of McCracken, Ky. charged with the willful murder of George Gray, and, with him, the appellant. Lon Fuqua, was jointly indicted, charged, with aiding and abetting him in the murder. Spot Polk seems to have pleaded guilty, and upon appellant's trial for the offense for which he was charged he was found guilty by the jury, and his sentence fixed at confinement in the penitentiary for life. His motion for a new trial having been overruled, the case is here on appeal.

There are several grounds for a new trial filed, and these we shall discuss, not in the order in which they were made, but in the order of their importance, as we regard them.

The seventh, eighth, ninth, tenth, eleventh, and twelfth grounds may be considered together. These set forth that "the sheriff, H. F. Lyon, handed to the jury, in their room, the minutes of the grand jury in considering the charge against Spot Polk and appellant; also the motion for a new trial in the case against Spot Polk, and many other papers in the case; and because the verdict in this case was caused and found and induced as much by reason of the aforesaid minutes or memorandum of the evidence heard by the grand jury and the motion for a new trial in the Spot Polk case as by anything else; and because the defendant did not have a fair trial in this case; because the jury had and read the memorandum of the evidence before the grand jury, and also the typewritten motion and grounds for a new trial in the Spot Polk case because the verdict was decided by lot, and also not by a fair expression of opinion by the jurors; because the verdict was not the verdict of one, two, or three of the twelve jurors, and those whose verdict was and is contrary to the verdict returned agreed to it, but did not and do not believe the defendant was proven guilty beyond a reasonable doubt." Section 280 of the Criminal Code of Practice is as follows: "Upon the trial of criminal or penal prosecutions, either party may except to any decision of the court by which the substantial rights of such party are prejudiced, subject to the restrictions in the next section." Section 281 provides that "the decision of the court upon challenges to the panel, and for cause upon motion to set aside an indictment, and upon motion for a new trial, shall not be subject to exception." These sections have often been construed by this court as forbidding the reversal of a case for an error or wrong done to the rights of the defendant during the progress of the trial, which appears for the first time in the motion for a new trial. Kennedy v. Commonwealth, 14 Bush, 340; Brown v. Commonwealth, Id. 398; Farris v. Commonwealth, Id. 362; Morgan v. Commonwealth, Id. 106; Redmon v. Commonwealth, 82 Ky. 333; Vinegar v. Commonwealth, 46 S.W. 510; Leslie v. Commonwealth, 42 S.W. 1095; Sawyer v. Commonwealth, 38 S.W. 136; Commonwealth v. Simons, 100 Ky. 164, 37 S.W. 949. As the errors complained of in the grounds supra appear for the first time in the motion for a new trial, they cannot be considered on this appeal, under the rule laid down in the cases above cited.

Appellant further complains that the court erred in refusing to give instruction "y" asked by him. Instruction "y" is substantially the ordinary instruction as to the presumption of innocence and reasonable doubt, and we think, while it was unobjectionable in form, that it was unnecessary, as instruction No. 4 given by the court amply covered this ground.

It is also urged that instruction No. 3 given by the court is erroneous in this: that it assumes Spot Polk did kill George Gray, whereas it is claimed that this question should have been left for the decision of the jury. In this the learned counsel for appellant are in error. The instruction clearly required the jury to believe "from all the evidence, to the exclusion of a reasonable doubt, that Spot Polk did feloniously, willfully, and with malice aforethought kill and murder George Gray," and, having so required the jury to believe, it was not necessary, in that part of the instruction which relates to the charge against appellant of aiding and abetting Spot Polk in the killing of George Gray, to add the words "if he did kill him." The instruction, as a whole, required the jury to believe, to the exclusion of a reasonable doubt, every substantive fact necessary to be shown in order to establish the guilt of appellant, and we think the instruction contains a correct exposition of the law as applicable to the case at bar.

The sixth ground for a new trial is that the court erred to the prejudice of defendant in permitting the commonwealth to contradict Spot Polk by showing that he had made statements to W. F. Bradshaw, the commonwealth's attorney, which differed from the evidence he gave upon the trial. We think the commonwealth had a right to contradict the witness as to his testimony in question, but the court erred in not instructing the jury that the evidence of the witness introduced was only admissible for the purpose of contradiction, and was not to be considered as substantive evidence against appellant. In the case of Mullins v. Commonwealth, 67 S.W. 824, this court, in speaking of a similar question, said: "But this evidence was only admissible for the purpose of impeaching the witness, and not as substantive testimony against the appellant. The court should have so instructed the jury. The failure to do this was a prejudicial error. Jones v. Commonwealth (Ky.) 57 S.W. 472; Collins v. Commonwealth (Ky.) 25 S.W. 743; and Fueston v. Commonwealth, 91 Ky. 230, 15 S.W. 177.

We are of opinion that a proper foundation was laid by the commonwealth for the introduction of the paper containing the dying declaration of George Gray on the subject of who killed him, and the circumstances of the killing. It is true, as contended by counsel for appellant, in order that such...