Huffaker v. Commonwealth

• Decision Date: 14 December 1906
• Citation: 98 S.W. 331,124 Ky. 115
• Parties: HUFFAKER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

98 S.W. 331

124 Ky. 115

HUFFAKER v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 14, 1906

Appeal from Circuit Court, Lyon County.

"To be officially reported."

Ben Huffaker was convicted of murder, and he appeals. Affirmed.

N. W Utley, for appellant.

N. B Hays, Atty. Gen., Chas. H. Morris, and Morris & South, for the Commonwealth.

BARKER J.

The appellant, Ben Huffaker, was serving a life sentence in the penitentiary at Eddyville, Ky. for the crime of murder committed in Pulaski county. On the 2d day of May, 1905, with a knife he stabbed a fellow convict, B. Sherley, to death. For this offense he was indicted by the grand jury of Lyon county, and afterwards tried and convicted of the crime of willful murder, the penalty of death being inflicted by the verdict of the jury. From the judgment based upon this verdict, he is here on appeal.

It is not disputed that the evidence adduced upon the trial overwhelmingly established the appellant's guilt of the offense with which he stood charged; but it is complained that the court erred in refusing to allow the affidavit filed by him for a continuance to be read as evidence upon the trial of the case. In this affidavit the defendant set forth that he was not ready for trial, and desired a continuance because of the absence of a witness who would testify to certain facts if he were present. The commonwealth's attorney consented that the affidavit should be read as a deposition, subject to exception for competency and relevancy, whereupon the court overruled the motion for a continuance. When the affidavit was offered to be read the court refused to permit it to be introduced, on the ground that the statements which it alleged the absent witness would make, if present, were merely hearsay evidence, and therefore, of course, incompetent. The absent witness was a guard, one Daniel Miller. The following exerpt from the affidavit will show what was expected to be proved by him "He says if said Miller were present he would testify, and it is true, material, and important, that he was guard in charge, as aforesaid, down to the time of the killing; that deceased had been reported to him for threatening, insulting, and declaring his purpose to assault, this defendant, and leaving his work place and going to defendant's stand for the purpose of threatening him with violence; that defendant himself had so reported to him; and that he, said Miller, had forbidden, under penalty, the deceased from threatening to assault, or insulting, defendant, and from leaving his work place, and going to defendant's stand for the purpose of menacing him for any purpose. * * *" The court correctly excluded the affidavit. The fact that the deceased, B. Sherley, had been reported to Miller as having threatened the defendant did not show that ...