Goff v. Commonwealth

• Decision Date: 11 December 1931
• Citation: 44 S.W.2d 306,241 Ky. 428
• Parties: GOFF v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

44 S.W.2d 306

241 Ky. 428

GOFF v. COMMONWEALTH.

Court of Appeals of Kentucky

December 11, 1931

Appeal from Circuit Court, Pulaski County.

Hobart Goff was convicted of manslaughter, and he appeals.

Reversed.

B. J Bethurum, of Somerset, for appellant.

J. W Cammack, Atty. Gen., Geo. H. Mitchell, Asst. Atty. Gen., and J. S. Sandusky, Commonwealth's Atty., of Somerset, for the Commonwealth.

DRURY C.

On February 13, 1931, in a shooting affray, at a magistrate's court in Pulaski county, Hobart Goff and Oather Poynter, each shot and seriously wounded the other.Goff recovered, and Poynter died.Goff and his father were by indictment charged with murder, and, upon his separate trial Hobart Goff was convicted of manslaughter, and his punishment fixed at four years in the penitentiary.

In the trial court, he urged eight grounds in support of his motion for a new trial; his motion was overruled, and he is now urging those eight grounds for a reversal.Seven of these we shall not discuss, nor will we discuss the facts or make any statement of them at all, lest, by so doing, we may detract from the importance of the one error for which this judgment is being reversed; to wit, for misconduct of the attorney for the commonwealth in his closing argument to the jury, in the course of which he said:

"I know you will object.(Referring to an objection made by attorney for defendant to certain remarks of the Commonwealth's Attorney in his closing argument.)You were born in the objective case.You have your stenographer here to take down my speech, making preparation for an appeal, which you know you will take, as you have no confidence in your case or his defense, and you are trying to get enough errors in the record to reverse this case when you take it to the Court of Appeals after your client is convicted. ***"

"Judge (meaning Judge Bethurum, attorney for the defendant), why are you fighting so hard?I will tell you: Because of the large fee you are to receive, because you are hired and employed with a big, fat fee.You know according to the evidence that the defendants are stock traders who are able to pay fat fees *** and, gentlemen, all I ask of you, or at your hands, is the performance of men who have taken a solemn oath to perform a solemn duty and render a verdict that will be just, and may God, the God on the great white throne above, give you power, courage and manhood to return that kind of a verdict into this courtroom, and no other, and that kind of a verdict that will reflect credit to you, to your county and to the state.I cannot believe that one of you would sit in the jury box and qualify and take oath that you have no bias or prejudice in this case, and would decide it according to law, and then go out and perpetrate a fraud upon the county and upon the state.If you were to, gentlemen, you would be like the sirens of old, who kissed and caressed their lovers with one hand and administered poison with the other; you would be a traitor to your country, if you were to be influenced, gentlemen, by politics, by religion, by creed, or anything else in rendering a verdict.Gentlemen, you would be in a class with Judas, who betrayed the Saviour for thirty pieces of silver, and with Esau who sold his birthright for a mess of pottage."

Of course this is not all he said, he said a great deal more which was objectionable and to which objections were made, but it would serve no useful purpose to quote it.This was more than enough to require a reversal of the judgment.The accused by counsel made objection to these remarks when made, and moved the court to discharge the jury and continue the case.An attorney for the commonwealth should never forget his high position; should never forget it is his duty to protect the innocent just as much as it is his duty to prosecute the guilty.He represents all the people of the commonwealth, including the defendant; he should in an honorable way use every power that he has, if convinced of the defendant's guilt, to secure his conviction, but should always remember he stands before the jury clad in the official raiment of the commonwealth, and should never become a partisan.See22 R. C. L.p. 104, § 12, 18 C.J.p. 1015, and p. 1016.

The defendant has certain rights, among which is the right to be heard by himself and counsel.Ky. Const. § 11.This defendant chose for his counsel Judge B. J. Bethurum, a man whose skill and learning is not unknown to us.It was the duty of the defendant to pay him for his services, but in the rendition of these services Judge Bethurum renders them as a sworn officer of the law, not as a hired representative; and if the defendant had been unable to employ counsel, and the court had appointed Judge Bethurum to represent him, it would have been his duty under such appointment and without fee or reward to represent the defendant just as ably and just as skillfully as if he had received a proper fee.

In each instance, his appearance on behalf of the defendant would be in his official capacity as one of the sworn officers of the court.Therefore the reference to his fee or to the ability of the defendant to pay a fee was improper.The defendant was charged with murder, and not with being wealthy, and no reference should have been made to his station in life.Wallace v. Com.,229 Ky. 776, 18 S.W.2d 290.

It was the duty of Judge Bethurum as a sworn officer of the court to use every honorable effort to secure for the defendant a fair trial, and, if his experience told him it was advisable to have a stenographer take down the argument of the attorney for the commonwealth, he not only had a right so to do, but it was his duty, and the reference thereto was highly improper.The tendency of the other remark was to induce the jurors to believe that an acquittal of the defendant would brand them with infamy, and class them as traitors.

It was the duty of these jurors to give respectful hearing and attention to this argument, and if they did they could not avoid being influenced thereby, and, if they were, then they were by it led to believe that anything less than a conviction of the defendant would be a grave dereliction on their part.It is never proper to admonish a jury that, if it does not convict, the members of the jury violate the oath which they have taken.Wallace v. Com.,229 Ky. 776, 18 S.W.2d 290.

His argument in full is tendered us by the attorney for the commonwealth, and he insists he did not say all the things it is charged he said, and that what he said is not so bad when his speech is read as a whole; but we did not hear the argument, and we can consider only those things which the judge in the bill of exceptions certifies that he said.

We have in reversing judgments so often and so forcibly...