Gleason v. Commonwealth

• Decision Date: 25 October 1911
• Citation: 140 S.W. 63,145 Ky. 128
• Parties: GLEASON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

140 S.W. 63

145 Ky. 128

GLEASON v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 25, 1911

Appeal from Circuit Court, Fleming County.

Ed M Gleason was convicted of voluntary manslaughter, and he appeals. Affirmed.

John P McCartney and B. S. Grannis, for appellant.

Jas Breathitt, Atty. Gen., and Theo. B. Blakey, Asst. Atty. Gen for the Commonwealth.

SETTLE J.

Appellant was tried in the court below under an indictment for the murder of George Courtney, but the jury, by their verdict, found him guilty of voluntary manslaughter, and by judgment of the court his punishment was fixed at confinement in the penitentiary, at hard labor, for an indeterminate period of not less than two, nor more than twenty-one, years.

Appellant sought a new trial on numerous grounds, but only two of them are urged on this appeal for a reversal of the judgment: First. That a member of the jury, previous to the trial and before he was accepted as a juror, had formed the opinion that appellant was guilty of the crime charged in the indictment, and declared he should be hanged therefor, or sent to the penitentiary for life. Second. The discovery after the trial of new evidence, material to his defense, which he could not by ordinary diligence have discovered sooner.

Prior to the amendment of section 281, Criminal Code, by the last Legislature, a ruling of the circuit court in refusing a new trial in a criminal case could not be reviewed by this court, but, as amended, that section now permits any error of the circuit court in refusing a new trial to be reviewed on appeal. Acts 1910, p. 269; Spencer v. Commonwealth, 122 S.W. 800; Wilson v. Commonwealth, 140 Ky. 1, 130 S.W. 794.

If, therefore, the circuit court erred in refusing appellant a new trial on the ground first urged by him, we may reverse the judgment for such error. By the affidavits of three persons filed in support of this ground, it was stated that J. M. Morris, a member of the jury by which appellant was tried, expressed before the trial, and before he was accepted as a juror, the opinion that appellant was "guilty of the murder of George Courtney, and should be punished therefor by being hanged or sent to the penitentiary for life." Morris gave an affidavit denying that he formed or expressed any opinion as to appellant's guilt or innocence before the trial. In addition, there were filed the affidavits of several members of the jury, from which it appeared that Morris, at no time during the trial, manifested any bias or prejudice against appellant, but that, on the contrary, he was largely instrumental in influencing several of the jury, who were in favor of finding appellant guilty of murder and punishing him accordingly, to agree to a verdict of voluntary manslaughter. We are of opinion that the affidavits of the other jurors were properly admitted as evidence on the charge of bias against Morris.

The affidavit or oral testimony of a juror will not be received to impeach a verdict or to impeach a fellow juror's conduct, but will be admitted in support of a verdict attempted to be impeached by other testimony, whether the juror's testimony goes to deny or explain expressions of bias before the trial, or to deny or explain misconduct during retirement. We are aware that this doctrine does not meet with favor in some of the states, but we gave it our approval in Howard v. Commonwealth, 24 Ky. Law Rep. 612, 69 S.W. 721, and have since adhered to it.

In elaboration of this doctrine, Mr. Wigmore, in his valuable work on Evidence (vol. 4, § 2354, subsec. 4), says: "Moreover, this object of disproving bias alleged to have existed before trial may be attained by showing expressions and conduct during retirement as an evidential fact relating back and negativing the supposed prior bias. But where the object is to determine the grounds or motives of the verdict as in themselves important for sustaining it (for example, to show that a certain illegal paper, or erroneous charge did not influence the verdict), here the other principle (ante, section 2349) applies to forbid this. The distinction is that in the former case the juror's expressions are not considered in their aspect in establishing motives for the verdict, but merely as part of his whole conduct going to determine the question of his former bias." 11 Am. & Eng. Ency. of Law, 1008.

Considered as a whole, the evidence fails to show bias on Morris' part. If, before appellant's trial, he gave expression to the opinion that his act in taking Courtney's life was murder, and should be punished as such, he probably spoke in the excitement of the moment, and without information of all the facts attending the homicide. Opinions are often hastily formed and expressed under such circumstances, and as readily changed, retracted, and even forgotten, when reflection and judgment assume their sway. Such was doubtless the case with Morris; at any rate, the testimony of his fellow jurors as to his conduct in the jury room and throughout the trial exonerated him from the charge of bias. In addition, the lightness of the verdict demonstrates that the entire jury were merciful in determining the degree of appellant's crime. We are satisfied that the circuit court's refusal to grant appellant a new trial on the ground of previous bias on the part of Morris was not error.

In order to intelligently consider appellant's second contention, it will be necessary to understand the facts of the homicide as disclosed by the evidence on the trial. The place of the homicide was the railroad station at the village of Ewing, in Fleming county. Appellant shot Courtney with a pistol; the ball penetrating his side, and causing death in a few hours. There were but two eyewitnesses to the shooting besides appellant; one of these, R. S. Porter, testified that he was sitting near the station platform, and saw appellant come out of the depot ticket office, walk down the platform steps, and pass by deceased, who stood with his back to the platform, talking to L. C. Mobberly; that after appellant had gotten 15 or 20 feet from deceased he stopped, faced him, and said, "George, I want to speak to you a minute," at the same time raising his hand which held the pistol, and as deceased turned toward him shot him; deceased thereupon slowly sank to the walk upon which he was standing, holding feebly to the edge of the platform with his hands as he did so. Porter further testified that...