Hall v. Commonwealth

• Court: Kentucky Court of Appeals
• Writing for the Court: THOMAS, J.
• Citation: Hall v. Commonwealth, 189 Ky. 72, 224 S.W. 492 (Ky. Ct. App. 1920)
• Decision Date: 24 September 1920
• Parties: HALL v. COMMONWEALTH.

224 S.W. 492

189 Ky. 72

HALL v. COMMONWEALTH.

Court of Appeals of Kentucky.

September 24, 1920

Appeal from Circuit Court, Fayette County.

James Frank Hall was convicted of voluntary manslaughter, and he appeals. Affirmed.

James G. Denny and Miller & Miller, all of Lexington, for appellant.

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

THOMAS J.

The appellant, James Frank Hall, upon his trial in the Fayette circuit court, under an indictment charging him with the murder of John Crawley, was found guilty of voluntary manslaughter, and his punishment fixed at confinement in the penitentiary for a term of 21 years. Seeking a reversal of the judgment rendered upon that verdict, he prosecutes this appeal. Many grounds are stated in the motion and reasons for a new trial, filed by appellant, but his counsel on this appeal refer in their brief to only four, they being: (1) Newly discovered evidence; (2) the admission of incompetent evidence introduced by the commonwealth over defendant's objections; (3) improper argument of the commonwealth's attorney; and (4) error of the court in declining to permit the jury to view the premises where the killing occurred after the introduction of all the evidence. In the course of this opinion, we will neither refer to nor discuss any ground included in the motion and reasons for a new trial not urged in brief of appellant's counsel, since we are convinced from a reading of the record that there is no real foundation for them, a conclusion which we presume was also entertained by counsel, because of no reference thereto. However, the failure of counsel to refer to or discuss a meritorious ground, properly raised and presented by the record, would not of itself necessarily cause us to ignore it.

It will be necessary to a proper understanding of the contentions made in appellant's brief to make a condensed statement of the facts which the testimony introduced by both the commonwealth and the defendant tended to establish. Defendant, at the time of the killing, with his two infant children by a divorced wife, resided at the home and with the family of his father, whose farm bordered on the Kentucky river in Fayette county. He is 37 years of age, and his victim, who was a brother of his divorced wife, was perhaps a few years younger. On the day of the killing defendant went across the river into Madison county with a physician, whom he had called to see his afflicted mother, to procure some medicine prescribed by the physician. A part of the trip was taken on the river by boat which belonged to him. The physician had recommended for his patient chicken broth squirrel broth, and perhaps other light diet, and defendant says that near 4 o'clock in the afternoon he took his gun and went in search of either a chicken or a squirrel with which to make the recommended diet for his mother. His brother Clarence Hall went along for the purpose of getting the mail from a post office, or a box, located in the direction defendant went. When the two had gotten less than a mile away from home, it is testified to by them, that they heard an explosion of dynamite in the river, whereupon they went to its bank through a cleared field, and they saw the deceased near the center of the river picking up fish, and that he was in defendant's boat, which the latter had used in going to the home of the physician, and which he had tied at some point on the bank of the river. That defendant then said to the deceased, "Jack, what are you doing in my boat?" and that the deceased answered "You God damned son of a bitch; this is not your boat," when defendant again repeated that it was his boat, and deceased replied: "I got it up at the pump house from Spurlock." Defendant again repeated that it was his boat, and deceased replied, "Well, God damn you, as soon as I get through picking up these fish I will give it to you." The defendant and his brother then stood on the bank of the river for 10 or 15 minutes, and deceased came with the boat to the bank and tied it to some willows, and came up the bank towards defendant with one of the oars raised, and said, "You have got your gun, but you are too big a coward to use it." Defendant then pointed his gun toward deceased, and said, "Don't do that," whereupon deceased dropped the oar and the fish which he had in the other hand, and drew from one of his pockets an opened knife, and started toward defendant with it. Defendant backed some distance, and then shot deceased, the load taking effect just below and to the right of the navel, and making a hole entirely through his body about the size of a silver dollar. Defendant and his brother immediately departed, leaving the deceased on the ground with his entrails protruding, and went to their home, where defendant claims that he told his father what he had done, as well as the reasons therefor. The father, with his two sons, Clarence and Jack, then went to the place of the shooting, and upon arrival they found the deceased still alive and in the terrible predicament in which the defendant had left him, but they did nothing at the time to relieve his situation or to render him any comfort. They each testified that the father found and picked up the knife in the edge of some weeds within a foot or two of a pool of blood, made from the wounds of deceased in the sand where he fell, and that within four or five feet between that point and the river they found the oar.

Among the witnesses introduced by the commonwealth were John Ballard and Will Collins. The former testified, in substance, that at the time of the shooting he was on a bluff, above the bottom where it occurred, and heard it, and also heard some one say, "O Lordy! don't shoot me any more;" that he heard no prior explosion of dynamite, and in looking in that direction he saw defendant coming across the bottom toward his home; that in going down the hill toward the bottom he lost sight of defendant, but upon getting to the foot of the hill he met defendant and his brother, Clarence, and asked defendant, "What is that hollering up there?" and the latter said, "Jack got hurt up there." Witness then asked, "What is the trouble?" and received the answer, "He was up there dynamiting and fooling with my boat, and I asked him to stop, and he wouldn't do it, and I shot him." Witness then said, "I am sorry you-all had any trouble," and defendant replied, "I am sorry I done it." Defendant and his brother Clarence in some respects contradict the witness Ballard as to what occurred or what was said at that meeting, the principal point of contradiction being that defendant, instead of saying, "I am sorry I done it," said, "I am sorry I had to do it." The witness Ballard, immediately after this conversation, went to the place of the shooting, and found deceased as above described, and he says that he was lying upon the sand with a barren space of some 10 feet or more around him, and that there was no knife or oar in sight. Witness then went in search of help to remove the deceased to some hospital or place where his wounds could be attended to. He went to a store about a mile away, and found the witness Collins and one Jessie Brenigar; all three immediately, as well as rapidly, returned to the scene of the shooting, and both Ballard and Collins testified that when they got between 150 and 50 yards of the place they saw standing around or near the body defendant's father, Ed Hall, and his brother Jack Hall, and that Clarence Hall, who was with defendant at the time of the shooting, was coming up from the river with an oar, but when he saw the commonwealth's witnesses approaching he started back toward the river with it; that afterward the father handed to Ballard the knife, saying, "Here's Jack's (John's) knife." All those present then arranged for and placed the deceased, who was still alive, in the boat, and he was carried by Ballard and Collins up the river to Clay's Ferry, where he was put on a truck and started to Lexington. He was later removed from the truck to an automobile, but he died shortly thereafter, and before arriving at Lexington. It is shown by the commonwealth that on the trip up the river to Clay's Ferry deceased, who was still conscious, stated that in scrabbling around the knife had fallen out of his pocket, and that it was opened by defendant's father after it was picked up. It is furthermore shown that on that trip deceased made a dying declaration to the effect that he did not know why defendant shot him; that he came walking up the bank, "and he (defendant) shot him (deceased)." It is quite clearly shown that bad feeling had existed between defendant and the deceased for at least as long as 3 1/2 years before the killing; it being about the time defendant and his wife separated, which was followed by a divorce.

One witness for the commonwealth testified that about a year before the killing he heard defendant say at a country store in the neighborhood that "somebody was going to keep on fooling with his things down there until they got killed." It is shown that the "things" referred to were fishnets, boats, etc. Another witness...