Houston v. Commonwealth

• Decision Date: 08 October 1937
• Citation: 109 S.W.2d 45,270 Ky. 125
• Parties: HOUSTON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

109 S.W.2d 45

270 Ky. 125

HOUSTON v. COMMONWEALTH.

Court of Appeals of Kentucky

October 8, 1937

Appeal from Circuit Court, Bell County.

John Houston was convicted under an indictment charging murder and prior convictions of murder and malicious cutting and wounding, and he appeals.

Reversed.

W. L Hammond and W. J. Stone, both of Pineville, for appellant.

Hubert Meredith, Atty. Gen., and A. E. Funk, Asst. Atty. Gen., for the Commonwealth.

DRURY Commissioner.

At about 7 p.m. on the 10th of January, 1937, John Houston, a man about 50 years of age, in a jealous rage stabbed to death Lucy Williams, aged about 42 years, in her room in the rear of a hotel in Middlesboro, Ky. He was charged by indictment with murder and was further charged in that indictment with having been convicted of malicious cutting and wounding in the Hopkins circuit court on the 2d day of October, 1909 with having been convicted of murder on the 2d day of April 1913, in the Vanderburgh circuit court in the state of Indiana; and with having been convicted upon a charge of malicious cutting and wounding by the Bell circuit court (Ky.) on the 22d day of its May term, 1934.

To the indictment against him the defendant entered a plea of guilty and, upon his trial under this charge and plea, his punishment was fixed by the jury at death. His motion for a new trial having been overruled, he appeals and relies for reversal upon three alleged errors of the court.

Evidence.

The first is that the commonwealth was permitted over his objection to introduce evidence, but we have held that under such a plea the commonwealth may introduce evidence to increase, or the accused to mitigate, the punishment to be inflicted by the jury. See Cornelison v. Com., 84 Ky. 583, 2 S.W. 235, 8 Ky.Law Rep. 793; Mounts v Com., 89 Ky. 274, 12 S.W. 311, 11 Ky.Law Rep. 474; Williams v. Com., 80 S.W. 173, 25 Ky.Law Rep. 2041. The punishment that may be imposed upon one charged with murder is fixed by Section 1149 of our statutes at death or life imprisonment in the discretion of the jury, while the punishment imposed by Section 1130 of our statutes upon one convicted of a felony, where two or more former convictions of felony are charged and proven, is only life imprisonment.

Over the objections of the accused, the commonwealth was allowed to prove the averred former convictions by introducing the records which in view of his plea of guilty was, to say the most of it, useless.

Instruction.

The defendant took the stand and testified in his own behalf and insists that he was entitled to instructions upon manslaughter and self-defense, but he never withdrew his plea of guilty, which he might have done (Johnson v. Com., 254 Ky. 775, 72 S.W.(2d) 472), hence there was no error in the instruction given which was simply this: "Gentlemen of the Jury: The defendant, John Houston, has entered a plea of guilty of the charge of the indictment in this case. You will therefore find the defendant, John Houston, guilty of wilful murder as charged in the indictment and fix his punishment at death or at confinement in the State Penitentiary for life in your discretion according to the proof. James M. Gilbert, Judge."

Error of the Judge.

After the jury had retired to their room and had considered the case for a while, this occurred: "The jury returned to the court room and asked the following question: 'Under this indictment under the Habitual Criminal Act, if we give this man life, would that prevent him being pardoned under this Habitual Criminal Act?' Judge: 'No, it would not prevent that.' Counsel for defendant excepts to the question asked and the ruling of the court on the question. Judge: 'I didn't rule on it, I just answered it.' Defendant excepts to the answer. The jury retired and soon came in and their names were called by the Clerk of the court, each one answering to...