Howard v. Commonwealth

• Decision Date: 21 December 1928
• Citation: 12 S.W.2d 324,227 Ky. 142
• Parties: HOWARD v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

12 S.W.2d 324

227 Ky. 142

HOWARD v. COMMONWEALTH.

Court of Appeals of Kentucky

December 21, 1928

Appeal from Circuit Court, Perry County.

Nannie Howard was convicted of murder, and she appeals. Reversed with direction to grant new trial.

Faulkner & Faulkner, of Hazard, for appellant.

J. W Cammack, Atty. Gen., and Jas. M. Gilbert, Asst. Atty. Gen for the Common-wealth.

STANLEY C.

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 previous. 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 at home, 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 11 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 to-night"; 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 against 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 state the exact words, the witness said: "Before I got out of bed I heard them say not to shoot Mrs. Combs; they said Lord have mercy, Mrs. Howard, don't shoot her." It appears from the record that there was at least one house between witness' home and where the trouble occurred, but she states she saw Mrs. Combs on the ground and the appellant walking away with a pistol. It is the rule in many jurisdictions to admit in evidence declarations of third parties and bystanders when made under conditions which characterize them as part of the res gestæ. But, whatever may be the rule elsewhere, this court is committed to the doctrine that such evidence is inadmissible. If the declarant was a participant in the affair, whether it be in a civil suit or criminal prosecution, and such statements appear to have been unpremeditated and spontaneous exclamations connected with a relevant act, they are admissible, but not otherwise. This character of evidence is rejected as being hearsay, and the particular testimony admitted here bears not only that burden, but the vice of opinion evidence as well. The exclamation of this unknown woman carried the implication that she was of the opinion that the appellant was then and there about to shoot the deceased. It did not have the sanction of an oath, nor was opportunity given for cross-examination of this unidentified person. The appellant claimed that, when she saw the deceased had no weapon, she lowered her pistol, and it would not have been fired except for the scuffle in which it was accidentally discharged. In other words, her defense was that it was an accidental killing. The effect of an error, whether prejudicial or not, must be gauged by its substance, by its relation to other evidence and the peculiar facts and circumstances of each case. In this connection there should be a distinction drawn between declarations of a fact and declarations implying a conclusion opposed to a defense presented. It is conceivable that under some circumstances, when a witness in describing an occurrence testifies to what he or another said by way of admonition or warning in the presence of the defendants and other participants, it would be harmless, but it must be considered otherwise when some one some distance away from the scene and not in sight of it testifies to a declaration by some other person not a participant, without being able to testify as to the entire immediate transaction. It is not justice to jeopardize a defendant's life and liberty by that kind of evidence.

The rule rejecting this character of evidence was first established in this jurisdiction (so far as our search reveals) by an opinion of Judge Lindsay, in Bradshaw v. Commonwealth, 73 Ky. (10 Bush) 576, in which it is said: "We are aware of no case in which it was held that the cries or exclamations of persons in no way connected with the main fact were admissible as part of the res gestæ. If either party is desirous of making available the facts known to such third persons, they must be put upon the witness stand to prove not what they said at the time of the transaction, but what they then saw or heard. (1 Greenleaf on Evidence, Section 108; Roscoe's Crim. Evidence, pp. 20, 21; 1 Taylor on Evidence, Section 531.)"

Subsequent cases in which the doctrine was approved are: Werner v Commonwealth, 80 Ky. 387; French v. Commonwealth, 7 Ky. Law Rep. 747; Kaelin v. Commonwealth, 84 Ky. 354, 1 S.W. 594, 8 Ky. Law Rep. 293; Stroud v. Commonwealth, 19 S.W. 976, 14 Ky. Law Rep. 179; L. & C. Packet Co. v. Samuels, 59 S.W. 3, 22 Ky. Law Rep. 979; Omer v. Commonwealth, 95 Ky. 353, 25 S.W. 594, 15 Ky. Law Rep. 694; L. & N. R. Co. v. Simpson, 111 Ky. 754, 64 S.W. 733, 23 Ky. Law Rep. 1044; L. & N. R. Co. v. Carothers, 65 S.W. 833, 66 S.W. 385, 23 Ky. Law...