Harris v. Commonwealth

• Decision Date: 30 November 1928
• Citation: 226 Ky. 584,11 S.W.2d 410
• Parties: HARRIS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

11 S.W.2d 410

226 Ky. 584

HARRIS v. COMMONWEALTH.

Court of Appeals of Kentucky

November 30, 1928

Appeal from Circuit Court, Todd County.

Milton Harris was convicted of voluntary manslaughter, and he appeals. Reversed, and remanded for new trial.

C. A Denny, of Greenville, for appellant.

E. J Felts, of Russellville, J. W. Cammack, Atty. Gen., and S. H Brown, Asst. Atty. Gen., for the Commonwealth.

TINSLEY C.

Milton Harris was indicted in the Todd circuit court, charged with the willful murder of Addie Slaughter. On his trial he was convicted of voluntary manslaughter, and sentenced to the penitentiary for 21 years. Appellant and deceased had been very intimate friends for more than 6 months prior to the killing, and deceased was frequently at appellant's home. The killing occurred on April 28, 1927. On the night of April 22d, deceased was at appellant's home and left at about 10 or 11 o'clock, shortly after which appellant and his family, except his daughter, Clara Evelyn, a young girl between 12 and 13 years of age, went to bed. Shortly after his departure, deceased returned to the house, abducted the daughter and took her away with him, keeping her until the night of April 26th, when she and deceased were found by the officers in the residence of the deceased in Elkton; he was arrested, and she was returned to her father. She was assaulted frequently by deceased during the time she was with him. After she was returned to her father, she detailed to him what had happened to her during her absence with the deceased. On April 27th, deceased waived an examining trial on a warrant which had been issued for him, growing out of the above circumstances, and, on the morning of April 28th, appellant went to Elkton, and shortly after his arrival, while sitting in an automobile truck on the courthouse square, deceased and his brother-in-law passed and entered a barber shop nearby, from which they emerged about 30 minutes later, and walked in the direction of appellant. Appellant says as they approached him, deceased had his hand in his right breeches pocket where he (appellant) knew deceased always carried a pistol, and that when within 12 or 14 steps, deceased, looking directly at appellant, gave a loud laugh, whereupon he could not restrain himself and shot deceased.

To reverse the judgment pronounced against him, appellant urges: (1) Error of the court in the selection of the jury; (2) the admission of incompetent evidence against him; (3) error of the court in instructing the jury; (4) improper argument of the attorney for the commonwealth; and (5) newly discovered evidence.

1. The complaint as to the selection of the jury is that, after exhausting the regular panel summoned for jury services at the term of court at which appellant was tried, the court ordered the summoning of a special venire of 50 men, and, failing to obtain a jury therefrom, made no further effort to obtain a jury from Todd county, but ordered a special venire of 50 men from Logan county, and that this special venire from Logan county was summoned by a deputy sheriff who was a partisan of the deceased.

By express provision of section 281 of the Criminal Code, decisions of the trial court upon challenges to the panel or for cause, or as to the manner in which the jury is selected, are not subject to exception, and cannot be reviewed upon appeal. Curtis v. Commonwealth, 110 Ky. 845, 62 S.W. 886, 23 Ky. Law Rep. 267; Powers v. Commonwealth, 114 Ky. 237, 70 S.W. 644, 1050, 71 S.W. 494, 24 Ky. Law Rep. 1007; Winstead v. Commonwealth, 195 Ky. 484, 243 S.W. 40.

However, we feel that it is only fair to say that the record discloses no abuse by the trial court of the discretion conferred upon it in this respect by section 194 of the Criminal Code.

2. The grounds of improper argument of the commonwealth's attorney and newly discovered evidence are equally unavailing. The improper argument complained of does not appear in the record at all, and no exception appears to have been taken to it. In fact, counsel for appellant in his brief concedes that this ground is without real merit. The newly discovered evidence, as set out in appellant's and accompanying affidavits, is not substantive, but would only tend to contradict the witness Bartlett; and we have repeatedly held that this character of newly discovered evidence is insufficient, of itself, to authorize a reversal. Sizemore v. Commonwealth, 189 Ky. 46, 224 S.W. 637.

3. The complaint of the admission of incompetent evidence and of the failure of the court to properly instruct the jury seems to us well founded. While there is no complaint of the instructions which were given, the complaint is that the court did not at the time admonish the jury as to the purpose and effect of certain impeaching testimony, nor take care of his omission in this regard by an instruction.

In this case the appellant was charged with and tried for willful murder. There was no denial of the fact that appellant did the killing. His defense was not guilty upon the grounds of self-defense and insanity.

However upon the cross-examination of appellant, counsel for the commonwealth was permitted, over appellant's objection and exception, to ask him if he and the deceased were not partners in the illegal traffic in intoxicating liquor; if deceased had not been drunk at appellant's house on liquor obtained there from appellant; if in their illicit liquor partnership business they did not have an arrangement between themselves whereby deceased, being a resident of the town of Elkton and appellant residing upon his farm where they had their still, that deceased was to ascertain when a raid was contemplated and to let appellant know so that he could hide the still. On the direct examination of Grace Berry, a witness for the commonwealth, and whose reputation for virtue and morality was impeached, the attorney for the commonwealth was permitted, over the objection and exception of appellant, to show by her that deceased had taken her to appellant's house and that appellant had introduced her to his family as deceased's wife, and that she and deceased had drunk whisky at appellant's barn, and that said whisky was furnished by appellant; and to show by the wife of the deceased, over appellant's objection and exception, that appellant came to their home occasionally and always brought liquor with him, and which he and deceased drank; and to show by Lawrence Settle...