Johnson v. Commonwealth

• Decision Date: 11 April 1901
• Citation: 61 S.W. 1005
• Parties: JOHNSON v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

61 S.W. 1005

JOHNSON v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

April 11, 1901

Appeal from circuit court, Estill county.

"Not to be officially reported."

Andrew J. Johnson was convicted of the offense of manslaughter under an indictment for murder, and he appeals. Reversed.

Grant E. Lilly and Henry Watson, for appellant.

R. J Breckinridge, for the Commonwealth.

HOBSON J.

Appellant was indicted for the murder of Acey Abner. On the first trial the jury failed to agree. On the second, the jury found him guilty of manslaughter, and fixed his punishment at 18 years in the penitentiary. The proof for the commonwealth was largely circumstantial as to the facts of the homicide. The deceased and the defendant were on a hill back of defendant's house, and some shots were fired. The defendant came immediately to the house, and told the father of the deceased to go to his son. The father went to where they were, and found his son shot. The defendant testified that on the day before the homicide the deceased had made a criminal assault on defendant's wife, and he made for the deceased with his pistol, intending to kill him, but the deceased threw up his hands and he desisted, but ordered the deceased off his place, and told him not to come there again. The next day the deceased came back with his father to get some property he had left, and went out on the hill to look for some hogs. The defendant went with him, and when they got out there the defendant's version of what occurred is as follows: "He sat down on his huncers and said he wanted to talk to me, and I sat down. He took out his knife and opened it, and began scraping his nail. He said: 'Andrew, I don't want you to make any fuss about what occurred here yesterday. I don't want my family to hear of it.' I said to him that when the grand jury met I expected to see to it that my wife went before it and I would put the stripes on him. He said, 'God damn you! I will cut your guts out,' and struck at me with the knife, and sprung up and continued to cut at me with his knife, while I was backing from him all the time, and did cut my clothes. When I got out my pistol I fired as rapidly as I could three times, but missed him the first two times. The last shot struck him, and he turned and walked about eight or ten steps back towards where we were sitting, and then fell. I immediately started to the house after his father." The open knife of the deceased was found on the ground not far from him, and the clothes of the defendant were cut in several places. Green Johnson testified to being an eye witness of the difficulty. He was introduced by the defendant, and was the only witness introduced in person at the trial who professed to have seen the difficulty. He stated that he saw the deceased and the defendant in a conflict. Defendant was backing, and deceased cutting at him, or the motions of his arm indicated he was cutting. The defendant backed from the deceased six, eight, or ten steps. The deceased was still pursuing him and cutting at him, when defendant fired three shots, and deceased went back several steps and fell. On cross-examination he was asked this question, "Are you not indicted for perjury in this case?" The defendant objected to the question. The court overruled the objection, and required the witness to answer that he had been indicted for perjury in the case. To this the defendant excepted. This was the most important witness for the defendant in the case,--in fact, substantially his only witness present at the trial as to what occurred on the hill. It was peculiarly prejudicial for the commonwealth to attempt to destroy the credit of this witness by showing that he had been indicted by the grand jury for his testimony given on the former trial of the case. In Baker v. Com. (Ky.) 50 S.W. 54; Parker v. Com. (Ky.) 51 S.W. 573; Pennington v. Com. (Ky.) 51 S.W. 818; and Ashcraft v. Com. (Ky.) 60 S.W. 931,--it was held that such evidence was inadmissible. These rulings are in accord with the current of authority, and seem to us to rest on sound reasoning; for, if such a course of cross-examination were allowed, the credit of the witness might be ruined by a charge which he had had no opportunity to meet, made against him by those who had an interest in destroying his testimony.

There were a number of important witnesses for the defendant who were unable to get to court on account of a rise in the Kentucky river. He asked for a continuance on this ground which was refused; his affidavit being allowed to be read as the deposition of the witnesses. It is unnecessary for us to determine whether this was error, for the reason that the judgment must be reversed for errors in the admission and rejection of testimony. It seems from the record that in his argument to the jury the attorney for the commonwealth, in speaking of the affidavit for continuance, which was read to the jury as the evidence of...