Hall and Little v. Commonwealth
| Decision Date | 20 October 1922 |
| Citation | 196 Ky. 167 |
| Parties | Hall and Little v. Commonwealth. |
| Court | Kentucky Court of Appeals |
Appeal from Floyd Circuit Court.
J. D. SMITH and B. M. JAMES for appellants.
CHAS I. DAWSON, Attorney General, and THOS. B. McGREGOR, Assistant Attorney General, for appellee.
Appellants, George Hall and Bruce Little, were jointly tried in the Floyd circuit court on an indictment charging them with wilfully murdering Richard Mosley. They were each convicted of the crime of voluntary manslaughter and given a sentence of six years' confinement in the state penitentiary. Their motion for a new trial was overruled and they have appealed, urging through their counsel as prejudicial errors committed by the court (1), refusal of the court to sustain their motion for a continuance; (2), the admission of incompetent evidence offered by the Commonwealth; (3), error in the instructions of the court; (4), improper argument of counsel for the Commonwealth; (5), the jury was improperly selected, and (6), that the verdict is against the evidence and is not sustained by it, each of which grounds will be considered in the order named.
1. The motion for a continuance was based upon the absence of Joe Greer and Tom Hall, whose testimony was set out in the affidavit therefor, but it was not shown that due and proper diligence had been used to obtain the attendance of the absent witnesses. The only effort to obtain their presence, as appears in the affidavit or other parts of the record, was "That they (defendants) have had a summons for each of said witnesses and do not know why they are absent." It was not shown where the absent witnesses resided nor to what county the process for their attendance was issued, nor that it was directed to that county, or was ever placed in the hands of any officer to execute, and if so how long before the trial. Clearly such a showing does not manifest the requisite diligence to procure the attendance of the witnesses. If, however, we were to put aside that objection, we would still be compelled to overrule this ground, since the testimony of the alleged absent witnesses was but cumulative with that of a number of others introduced by defendants and did not touch or bear upon any independent fact. The court permitted the affidavit to be read as the depositions of the witnesses and instructed the jury that it should be considered and given the same weight as if the witnesses were present in court testifying to the facts. It is quite manifest, therefore, that the court did not abuse a sound discretion in the course pursued, but on the contrary, for the reasons stated, gave defendants the benefit of testimony to which they failed to show themselves entitled.
2. The second ground relied on is so completely without merit that but little need be said in answer thereto. By far the larger portion of the testimony complained of was not objected to, and the basis of the complaint against all of it is that is was elicited by leading questions, which, if true, would not be a ground for reversal unless, perhaps, that method of examination was so extensively and artfully indulged in as to make the testimony not that of the witness but a recitation of the facts by the examining counsel. On the contrary, no such conditions appear and the questions complained of but remotely, if at all, violated the rule against leading questions, as will be seen by the subjoined ones, and answers thereto, propounded to some of the prosecuting witnesses by the Commonwealth's attorney. The other questions complained of are no more violative of the rules of proper examination and no more prejudicial to the interest of defendants than the ones we have inserted, and clearly this objection is so extremely technical as not to require further time or attention.
3. The principal complaint under this ground and the only one which may be considered as at all material, is directed to the self-defense instruction wherein the court failed to say that defendants had the right to kill the deceased if it reasonably appeared to them to be necessary to protect themselves or either of them from death or great bodily harm. After properly setting out the predicating facts which would justify defendants in exercising their right of self-defense, the instruction said, "Then the court tells the jury that the defendants had the right to use such force as was necessary, or as reasonably appeared to them to be necessary, to ward off the then real, or to them or either of them apparent danger, but no more." The complaint is directed to the omission from the instruction of the phrase, or its substance "even to the taking of the life of the deceased." The criticism of the instruction is technically correct, since it to be formally accurate should contain the last quoted clause or its substance; but, it does not follow that in every case the judgment should be reversed because it was not so stated in express terms. In other words, if the phraseology of the instruction, coupled with the testimony in the case, is such that the jury could not have been misled to the defendants' prejudice, the technical error will not be given the broad effect of working a reversal of the judgment. The case relied on as sustaining counsel's contention as to the fatal effect of the omission is Reynolds v. Commonwealth, 183 Ky. 375. In that case the complained of instruction was so worded as to require the jury to believe beyond a reasonable doubt the existence of the danger which would produce the right of self-defense, and for that reason it was held fatally defective and for which a reversal was ordered. The instruction also contained the omission herein complained of, since it expressly limited the right of defendant in the exercise of his right of self-defense to only shooting and wounding the deceased. Because of that fact the instruction was criticised but a reversal was not expressly based upon that ground. Reference is made in that opinion to the case of Barker v. Commonwealth, 159 Ky. 309, as authority for the criticism therein made and now under consideration. In the latter case the judgment was reversed for other errors, but the opinion took occasion to admonish the court that upon another trial the self-defense instruction, instead of confining the right of defendant to only shooting and wounding the deceased, "should follow the usual language of such instruction which permits the defendant to shoot and kill his opponent under the circumstances predicated in the instruction," which, also, as will be seen, was not expressly stated as the ground for the reversal. But, whether so or not, it will be noticed that in each of them the language of the complained of instruction confined the right of the defendant only to the shooting and wounding of his antagonist in order to avert the danger about to be inflicted on him. In the instant case the instruction was not so restrictive of the rights of appellants, since it permitted them under the circumstances named therein to use such force "as was necessary, or as reasonably appeared to them to be necessary, to ward off the then real, or to them or either of them apparent danger," which evidently was broad enough to include the killing of the deceased by them if that was necessary, or reasonably appeared to them to be necessary, to save themselves from either the real or apparent danger. It will, therefore, be seen that there is a wide difference in the comprehensiveness of the language of the instruction in the two cases referred to and the one now being considered. The one in effect excluded from defendant the right to shoot and kill his antagonist, although it might be necessary...
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