Karsner v. Commonwealth

• Decision Date: 24 October 1930
• Citation: 235 Ky. 710
• Parties: Karsner v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

235 Ky. 710

Karsner v. Commonwealth.

Court of Appeals of Kentucky.

Decided October 24, 1930.

1. Homicide. — Question as to whether killing by one charged with voluntary manslaughter was excusable or not held for jury.

2. Homicide. — Admission in manslaughter prosecution of alleged statement by defendant, relative to how he felt about killing, made six months thereafter, held erroneous.

Although such expressions introduced to show callosity of heart and bearing on question of malice are often admitted against a defendant, they must have been made within reasonable time after killing, since guilt or innocence of defendant is to be measured by the appearances to him at the time of the shooting and his good faith belief then in necessity therefor, in the exercise of a reasonable judgment.

3. Criminal Law. — Statement made in full blaze of homicide by either of participants are parts of res gestae and admissible as such.

4. Criminal Law. — Conversation relative to defendant's attempt to secure antedated permit to carry pistol after killing held erroneously admitted in manslaughter prosecution.

5. Criminal Law. — Ordinarily, evidence of other crimes is irrelevant and inadmissible.

6. Criminal Law. — Argument by prosecuting attorney regarding facts established by evidence erroneously admitted held error.

Appeal from Owen Circuit Court.

LESLIE W. MORRIS and H.W. ALEXANDER for appellant.

J.W. CAMMACK, Attorney General, S.H. BROWN, Assistant Attorney General, and JOHN J. HOWE for appellee.

OPINION OF THE COURT BY DRURY, COMMISSIONER.

Reversing.

The appellant has been here before; see 196 Ky. 560, 245 S.W. 155. His name is incorrectly spelled there, but we are now correcting that.

About 3:00 p.m. Saturday, February 2, 1929, in the village of Monterey, in Owen county, he shot and killed Raymond Simpson. Two indictments for felony resulted. By No. 3202 he was charged with voluntary manslaughter, and by No. 3203 he was charged with a recidivistic offense of carrying concealed a deadly weapon.

Upon this trial under No. 3202 he was found guilty and his punishment fixed at two years in the penitentiary. As one of his contentions is that he was entitled to a peremptory instruction we shall give a short statement of the facts. Slayer and slain had been neighbors and friends. Not long before this homicide Karsner had bought some tobacco and had taken it to Lexington and delivered it to some loose-leaf warehouse for sale. Simpson saw the tobacco there and bought it from Karsner at a price that gave Karsner a small profit. When market day arrived and the tobacco was sold it failed to bring as much as Simpson had paid for it and Karsner twitted him.

On the day of this homicide Simpson was in Monterey and was drinking. Karsner had come to mill, and, while waiting for his grinding, was walking about the village buying some household supplies. Simpson was engaged in a conversation with some men, and, as Karsner came along, Simpson hailed Karsner, turned to him, laid his hand on his shoulder and said: "What's the matter with your lips? Bramble will fix them up for you all right." Thus referring to a difficulty between Bramble and Karsner, some mention of which is contained in the old case. Simpson's language to Karsner soon became grossly abusive and insulting. His mother came up and pleaded with Simpson to go home. He refused. Karsner said to him, "I have a wife and six children and I do not want any trouble." Karsner backed away, Simpson followed him and with his right hand grabbed him by the lapel of his coat, so some say, others that he grabbed Karsner by the collar and began choking him, then Karsner threw his left hand behind the neck of Simpson and drew him to him; Karsner says he did this to relieve the pressure on his throat. The insulting and abusive nature of Simpson's language became more so, if that is possible for such language. Karsner backed out into the street, Simpson followed, neither released his hold upon the other. Simpson saw a pistol in Karsner's pocket and said "that ______ gun you have, this is one time it will do you no good." The two men struggled for possession of the pistol, Karsner got the better hold upon it, he thrust it against Simpson's left side and fired.

Upon these facts reasonable men might differ, whether this killing was excusable or not, the question was properly submitted to the jury, and, if the court did not err in his rulings on the evidence and the conduct of counsel for the commonwealth, it should be affirmed. We shall now state these matters, but shall preface that statement by saying that Karsner by his counsel objected to all of it, and, when his objections were overruled, excepted to the ruling.

THE EVIDENCE COMPLAINED OF.

Karsner was asked on cross-examination if on the day following the homicide, when he surrendered to the authorities, he or his brother Al Karsner, in defendant's presence, had not asked the county judge to give him a permit to carry a pistol, to date it back to a date prior to the shooting, and had told the county judge that a good lawyer had advised that he could issue such a permit. Karsner denied remembering this. The county judge testified that in substance such a request and statement was made by either Karsner or his brother, in Karsner's presence.

The commonwealth asked Karsner about a conversation with Nelse Cunningham one day some time after the homicide while he was leading a cow, and asked Karsner this: "I will ask you if during your conversation with Mr. Nelse Cunningham at the time you had that cow there on the road, if, during your conversation, that Mr. Nelse Cunningham asked you how it felt when you killed a man, you responded to him that you felt no more about it than to shoot a cow?" Karsner answered: "Not that way. Mr. Cunningham came out as I was coming along with the cow, he stopped and was talking to me. The cow was hot, it was hot weather, been driving the cow from John Boner's up in Franklin County. He came out and said, `Hub, how does a man feel when he kills a man?' I said, `I don't know, Mr. Cunningham, I never killed a man.' He said, `You killed Raymond Simpson.' I said, `No, sir, I shot him, he died later.' `Well,' he said, `that is the same thing,' I said, `Absolutely not, Mr. Cunningham.' That was the statement." The date of this conversation was August or September. This is taken from the evidence of Cunningham: "You asked him how a man felt who had shot another, and if he did say in substance, `In a way, no more than shooting that cow?' Yes, sir."

We shall first refer to the latter conversation. The purpose of the commonwealth in introducing this was to induce the jury to believe Karsner was utterly devoid of proper feeling for his fellow man, and to evidence malice. Such expressions as this, introduced to show callosity of heart as bearing on question of malice, are often admitted against a defendant. See 30 C.J. 159, sec. 375. It would seem, however, they must have been made within a reasonable time after the killing, for example here are some instances when such have been admitted, and we have followed these citations with a brief statement of the intervening time: Duncan v. Commonwealth, 12 S.W. 673, 11 Ky. Law Rep. 620 (2 hours); Howard v. Commonwealth, 227 Ky. 142, 12 S.W. (2d) 324 (just a few minutes); Maddox v. State, 159 Ala. 53, 48 So. 689, (20 minutes); Morris v. State, 146 Ala. 66, 41 So. 274 (10 minutes); Henderson v. State, 70 Ala. 29 (6 minutes); Taggart v. Commonwealth, 104 Ky. 301, 46 S.W. 674, 20 Ky. Law Rep. 493 (shortly after the killing); Smith v. State, 183 Ala. 10, 62 So. 864 (10 minutes); State v. Poole, 156 La. 434, 100 So. 613 (60 minutes); State v. Adams, 128 Wash. 419, 223 P. 9 (immediately); People v. Brown, 62 Cal. App. 96, 216 P. 411 (shortly after the shooting); Kilpatrick v. State, 213 Ala. 358, 104 So. 656 (a few minutes after the shooting); State v. Messervey, 105 S.C. 254, 89 S.E. 662 (before victim was buried); Brown v. State, 149 Ark. 588, 233 S. W. 762 (when body of victim was picked up); Ballentine v. State. 169 Ark. 871, 276 S.W. 1002 (when accused was arrested); McManus v. State, 36 Ala. 285 (30 minutes); State v. Albanes, 109 Me. 199, 83 A. 548 (24 hours); Bowman v. U.S., 59 App. D.C. 90, 267 F. 648 (night after the homicide).

The last two cases are the longest spaces of intervening time between the homicide and the making of the admitted remark, we have found; except the domestic case of May v. Commonwealth, 153 Ky. 141, 154 S.W. 1074. In that case five conversations are detailed in the evidence, all of which come within the scope of the question under consideration. The court in stating the evidence against May sets out these statements, but nothing further is said about them in that opinion. We have examined that record and have read the evidence in that case as well as the briefs, and we find there was no objection to this evidence at any time or attack made upon it further than an attack upon the reputation of the witness Speed Bryant. Thus there was no occasion in that case for the court to pass upon the admissibility of such evidence, and from an examination of the opinion it will be seen the court did not do so, and that opinion is of no help in passing on the question before us. Such statements are admitted as bearing on the question of malice. The guilt or innocence of Karsner is to be measured by the appearances to him at the time of the shooting and his good faith belief then in the necessity therefor, in the exercise of a reasonable judgment. Evidence of malice then entertained by Karsner would be admissible, and his statements showing callosity of heart then or shortly thereafter made would be competent evidence, but it would seem that such remarks to be admissible must be shown to have been made within a reasonable proximity to the homicide; and this remark made more than six months after this homicide, if made at all, was certainly entirely without...