Howard v. Commonwealth

• Decision Date: 21 December 1928
• Citation: 227 Ky. 142
• Parties: Howard v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

227 Ky. 142

Howard v. Commonwealth.

Court of Appeals of Kentucky.

Decided December 21, 1928.

1. Homicide. — In prosecution for murder, failure to give instruction on defense of home held not error, where no attack was made on defendant's home, but according to her own testimony, attack was made on her personally by deceased.

2. Criminal Law. — Declarations of third persons and bystanders, not participants, though unpremeditated and spontaneous exclamations connected with a relevant act, are inadmissible, as hearsay and opinion evidence either in civil suit or criminal prosecution.

3. Criminal Law. — The effect of an error as being prejudicial or otherwise must be gauged by its substance, by its relation to other evidence, and the peculiar facts and circumstances of particular case.

4. Criminal Law. — In prosecution for murder, admitting testimony of witness some distance from homicide and not in sight thereof, that her attention was attracted by hearing an unidentified bystander shouting to defendant not to shoot deceased, held reversible error, as jeopardizing defendant's life by hearsay and opinion testimony.

5. Criminal Law. — Where defendant in murder case denied making statement that she did not feel she had "killed no more than an ordinary piece of stock," permitting commonwealth to recall deputy sheriff, after defendant had closed, to testify that defendant made such statement after being arrested, held not reversible error, notwithstanding court did not admonish jury that evidence was for purpose of contradiction, and though it was admitted as substantive proof as if given in chief, since such testimony was also competent to rebut claim of accidental killing.

6. Criminal Law. — Under Criminal Code of Practice, sec. 221 et seq., and particularly section 224, rebuttal evidence is not limited to party first introducing his witnesses, and order thereof lies chiefly in sound judicial discretion of trial judge, but, in exercise of that discretion, it should be borne in mind that supreme object is to elicit truth.

7. Criminal Law. — If it appears during course of trial that true conditions will be disclosed by permitting introduction of witnesses, although out of usual order, it is duty of trial court to permit their introduction under Criminal Code of Practice, sec. 221 et seq.

8. Criminal Law. — In prosecution for murder, in which defense was that shooting was accidental, and in which defendant's testimony that during scuffle over pistol her dress, which was produced before jury, was ripped and torn, was rebutted by commonwealth's testimony that dress was not the one defendant had on at time of killing, court erred in refusing to permit testimony for defendant that dress was the one she had on at time of killing, even though such testimony might have been heard in chief, under Criminal Code of Practice, sec. 221 et seq., particularly section 224.

9. Criminal Law. — Testimony of commonwealth's witness that at some undisclosed time she saw codefendants, jointly indicted with defendant for murder, but not on trial with her, running toward defendant's home, and that one of them had something in her hand, implication being that they were taking weapon to defendant, held erroneously admitted in evidence, in absence of any evidence of conspiracy or anything else making it competent.

10. Witnesses. — Though to aid in discovery of truth reasonable latitude is allowed in cross-examination of witnesses, and method and extent must from necessity of case depend very largely in discretion of trial judge, where cross-examination proceeds beyond proper bounds or is being conducted in a manner which is unfair, insulting, intimidating, or abusive, or is inconsistent with decorum of courtroom, court should interfere, regardless of objection.

11. Criminal Law. — Where commonwealth's attorney, in cross-examining defendant in murder case, asked her about certain testimony, what other witnesses had said concerning the same thing, and whether testimony sworn to by such other witnesses was a lie, trial court not only should have sustained objections thereto, but should have admonished counsel.

Appeal from Perry Circuit Court.

FAULKNER & FAULKNER for appellant.

J.W. CAMMACK, Attorney General, and JAS. M. GILBERT, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY COMMISSIONER STANLEY.

Reversing.

On July 16, 1928, Mrs. Docia Combs, met her death from a pistol wound, and on the same day the appellant, Mrs. Nannie Howard, was indicted for her murder and brought to trial ten days later. A judgment sentencing her to imprisonment for life was the result.

This unfortunate tragedy occurred at Lothair, a mining town, and arose from a neighbor boy having fired a BB rifle into the yard of the deceased, the shot striking her sister-in-law. The boy handed the rifle to the 18 year old son of the appellant, who was blamed for the mischief. A quarrel ensued between this son, Rex Howard, his mother, and the deceased, the details of which need not be stated. Throughout the quarrel, Mrs. Combs was the most belligerent of the three.

Several hours later, shortly after noon, when Mrs. Howard went to her door, it is shown that the deceased renewed the quarrel by accusing the appellant of having told the contents of some letters which she had shown to her some time previously. This quarrel became rather violent, and the deceased with profanity declared she had a good gun and "was going to shoot somebody's brains out," and otherwise boasted of her intentions and prowess. One of the neighbor women led her into the house. About this time the appellant intercepted a deputy sheriff who was passing, and told him of the trouble, and he advised her to secure a warrant for the arrest of Mrs. Combs.

It appears that during the interval between the quarrels the appellant went to the home of a neighbor, Mrs. Darlin, and, finding no one there, secured a pistol from a bureau drawer and took it home with her.

Shortly after this second quarrel, Mrs. Combs, with some others, went bathing in the river close by. During this time the appellant walked over to a neighbor's house, and, upon being asked if she and Mrs. Combs had not had trouble, responded that she had taken more off of those women that day than she intended to take. Mrs. Howard returned home about the time Mrs. Combs came from the river, wearing a gingham dress in which she had been in bathing, with a towel wrapped around her body. It appears that the appellant's kitchen was on the street being traveled by the decedent, and her kitchen door opened into a little yard on which Mrs. Combs' house fronted. The evidence of the commonwealth was that, as Mrs. Combs reached the yard, Mrs. Howard came out of her door with a pistol, and, pointing it at Mrs. Combs, snapped it, and then dropped it to her side; whereupon an eleven year old boy named Parnelle Allen ran to her and grabbed the pistol, trying to take it away from her, but, when Mrs. Howard told him to get away, he left hurriedly. Then she and the deceased struggled over the pistol, and Mrs. Howard shoved her away and fired, the bullet striking her back of the right ear, from which wound she died in a short time.

The evidence of the appellant and her witnesses was that, just before going to the river, the deceased was on her porch with a bath towel around her and dancing, and said, "I am dancing here but will be dancing in jail tonight;" that when she came up from the river the towel concealed her right hand, and, as she passed the window of the kitchen in which the appellant was at work, she said, "Mrs. Howard, God damn you, I am coming in on you;" whereupon Mrs. Howard got the pistol and started out to protect herself, as she said, and then Mrs. Combs again cursed her and said when she got in the house and got her gun she was going to kill her; whereupon the appellant replied, "Mrs. Combs, we want to settle this without any guns." The boy, Parnelle Allen, ran up and snatched the pistol, and, thinking the little boy might get shot, she threw out the cylinder and started to turn it up so the cartridges would fall out. Then, the appellant says, Mrs. Combs grabbed the pistol, and said, "I will send you to hell with your own damn gun;" and, as they scuffled for the weapon, it went off while they both had hold of it. The appellant testified that she had no ill will toward the deceased except that, when she threatened to come into her home, she flew into a passion and went out to protect herself and children; that when she saw Mrs. Combs was unarmed she let down the weapon and was trying to unload it, when it was seized first by the boy and then by the deceased. She denied having snapped the pistol unless it snapped while the boy had hold of it.

Appellant's counsel has filed a 95-page brief assigning numerous grounds for reversal of the judgment, including criticism of the instructions in several particulars. The instructions fairly presented the law of the case, and the complaints as to them are without merit. Counsel is especially insistent that an instruction on the defense of the home should have been given. The facts of the case did not warrant such an instruction, as there was no attack being made on her home, but, according to appellant's own evidence, it was on her personally, and the court has several times held that in such cases it is not proper to instruct the jury as appellant here insists should have been done.

There are, however, a number of errors in the admission and rejection of evidence. Some of them are of an inconsequential nature, and others of a higher degree, but not of sufficient importance to warrant a discussion. Perhaps the most serious error is that in the testimony of Nora Sexton. She was sick in bed at her home two or three doors away, and testified that her attention was attracted by hearing "a woman holler to Mrs. Howard and telling her not to shoot Docia." Upon being pressed by the court to...