Fuson v. Commonwealth

• Decision Date: 19 June 1923
• Citation: Fuson v. Commonwealth, 199 Ky. 804, 251 S.W. 995 (Ky. Ct. App. 1923)
• Parties: FUSON ET AL. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

251 S.W. 995

199 Ky. 804

FUSON ET AL. v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 19, 1923

Appeal from Circuit Court, Whitley County.

Joe Pearl Fuson and two others were convicted under an indictment for murder, and they appeal. Affirmed.

W. B Early and B. B. Snyder, both of Williamsburg, for appellants.

Chas I. Dawson, Atty. Gen., and T. B. McGregor, Asst. Atty. Gen for the Commonwealth.

McCANDLESS J.

The defendants, Tom Fuson, Joe Fuson, Walter Fuson, and Marna Fuson were jointly indicted in the Whitley circuit court, charged with the murder of John Mays; the indictment including charges of conspiracy and of aiding and abetting. In a joint trial all were found guilty, and the punishment of Joe and Walter was fixed at confinement in the penitentiary for life, and that of Tom and Marna at such confinement for the periods of 21 and 10 years, respectively. The lower court granted a new trial to Tom, and the others have appealed.

Grounds of complaint are: (a) The court erred in overruling defendants' motion for continuance; (b) in its instructions; (c) the verdicts are flagrantly against the evidence. Most emphasis is laid on the first ground. The defendants were arrested on the morning of September 3, 1922, and incarcerated in the Whitley county jail. They were indicted on the 21st day of September, and their trial set for the 6th day of October, being the seventeenth day of that term of court. On the 2d day of October the court appointed three able attorneys to defend them. When the case was called for trial, they filed a motion for a continuance, and in support of it their own affidavit, in which, after referring to the absence of material witnesses and their testimony, they said:

"They state that they have been in jail and unable to employ counsel, and the court appointed counsel, who have been busy in other cases and have had no chance, except a few minutes, when they were arraigned for trial, to confer with their attorneys."

It is the duty of the courts to carefully weigh the correlative rights of the commonwealth and of the defense in criminal cases. To be effective, justice must be swift. It is a matter of common knowledge that delays in such cases lessen both the chance and the effect of convictions, and it is the policy of the law to afford speedy trials. But it is even of greater importance for justice to be certain and sure, and in seeking speedy trials courts are careful to avoid being rushed into hasty conclusions by popular clamor, or by force of public sentiment, but seek to give to each side a fair hearing. With that object in view this court has not hesitated to reverse cases where it appeared that sufficient time and opportunity was not given the defendant and his counsel to properly prepare and present his defense.

This may apply to any criminal case, but is especially applicable where the defendant is unable to employ counsel, and the court appoints to defend him counsel who are engaged in other matters at the time. An attorney who has contracted sufficient business to keep him engaged during the term might refuse to accept employment in a criminal case which has suddenly arisen; but as an officer of the court he must perforce obey its mandates, and when so appointed may only accept the duty and do the best he can. As illustrating the rule, reference might be had to the cases of Allen v. Commonwealth, 168 Ky. 325, 182 S.W. 176; Smith v. Commonwealth, 133 Ky. 532, 118 S.W. 368; Samuels v. Commonwealth, 154 Ky. 758, 159 S.W. 575; Stroud v. Commonwealth, 160 Ky. 503, 169 S.W. 1021; Helton v. Commonwealth, 87 S.W. 1073, 27 Ky. Law Rep. 1163; Miller v. Commonwealth, 197 Ky. 703, 247 S.W. 956. However, in this case the judgment of the court on the motion for a continuance does not appear in the record, and no exceptions were taken thereto by defendants, and consequently it cannot now be considered. Cr. Code, §§ 280-282; Bates v. Commonwealth, 16 S.W. 528, 13 Ky. Law Rep. 132; Blanton v. Commonwealth, 147 Ky. 814, 146 S.W. 10; O'Brien v. Commonwealth, 89 Ky. 364, 12 S.W. 471, 11 Ky. Law Rep. 534; Green v. Commonwealth, 83 S.W. 638, 26 Ky. Law Rep. 1227; Smith v. Commonwealth, 119 Ky. 280, 83 S.W. 647, 26 Ky. Law Rep. 1229.

Besides, none of the distinguished counsel for appellants have filed an affidavit in support of their clients' statements, and the latter are not in a position to state the extent of their attorneys' preparation, and it is not shown that they were prejudiced by haste, or would have been benefited by an extension of time, and we are therefore unable to say that their substantial rights have been prejudiced in this way.

In the first instruction all the elements constituting the crime of murder were fully set out, except that the jury were only required to believe that "the defendants shot, wounded, and killed John Mays with a pistol or pistols" and the words, "that he died within a year and a day thereafter," or "presently," or "then and there died," were omitted, and complaint is made of this. It is true that an indictment must by equivalent terms show the death of the injured party from the effects of the alleged wounding "within a year and a day," but in this case it is shown by all that the deceased died on the spot, and, as there can be no issue as to time, the court did not err to defendants' prejudice in not forming such issue in the instruction.

The third instruction reads:

"If you believe from the evidence in this case beyond a reasonable doubt that the defendants or either of them have or has been proven guilty either of willful murder as set out and defined in instructions 1, 4, and 5, or of voluntary manslaughter as set out and defined in instructions 2, 4, and 5, but shall have a reasonable doubt from all the evidence as to which offense the defendant Joe Pearl Fuson or Walter Fuson has been proven guilty of, then you will give them or either of them the benefit of the doubt, and find them or him guilty of the lower offense, that of voluntary manslaughter, as set out and defined in instruction 2, and fix their punishment, as set out and defined in instruction 2."

It is claimed that this virtually told the jury that they must fix the punishment of Joe and Walter the same. It might have made the instruction clearer for the words "or his" to have followed the word "their" in the last clause, but in the other parts of the instruction Joe and Walter were each separately given the benefit of the reasonable doubt, and the rational construction throughout is that their liability was several and not joint. We do not think the jury could have misunderstood this, or that the defendant was prejudiced thereby.

It is also urged that the fourth instruction on the question of aiding and abetting was erroneous, in that it did not include the phrase, "and that said shooting and killing of Mays was induced thereby." In some cases it has been held essential to include such language in an instruction for aiding and abetting. Powers v. Commonwealth, 110 Ky. 386, 61 S.W. 735, 63 S.W. 976, 22 Ky. Law Rep. 1807, 23 Ky. Law Rep. 146, 53 L. R. A. 245; Hall v. Commonwealth, 93 S.W. 904, 29 Ky. Law Rep. 485. In the Powers Case the defendant was not present at the homicide and the aiding and abetting referred to the formation of an alleged conspiracy and it is not in point. The Hall Case seems to be in point, however. In a great number of cases instructions similar to the one in this case, and in which the phrase quoted was omitted, have been approved. Combs v. Commonwealth, 112 S.W. 658, 33 Ky. Law Rep. 1058; Baskett v. Commonwealth, 44 S.W. 970, 19 Ky. Law Rep. 1995; Ward v. Commonwealth, 14 Bush. 233; Steeley v. Commonwealth, 129 Ky. 524, 112 S.W. 655, 33 Ky. Law Rep. 1032; Gambrell v. Commonwealth, 130 Ky. 513, 113 S.W. 476; Chadwell v. Commonwealth, 69 S.W. 1082, 24 Ky. Law Rep. 818. Indeed, in the first two cases, the instructions were prepared by this court, and it is also worthy of note that the same form of instruction is approved in Hobson on Instructions. Several different forms are there given but in all of which the phrase quoted is omitted. Hobson on Instructions, pp. 988, 991, 994, 996.

The reasoning is clear. If one commits a crime and another is actually present aiding, abetting, assisting, or encouraging its commission, the latter thereby becomes a participant, a principal in the second degree, and his culpability is determined by his motives, and not by the degree of his influence over the former. While somewhat involved, we think on the whole the instructions were sufficiently clear to be understood by the jury, and that the substantial rights of the appellant were not prejudiced thereby.

As to whether the verdict is sustained by the evidence calls for a statement of the facts. The homicide...