Lawler v. Commonwealth

• Decision Date: 26 November 1918
• Parties: LAWLER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

206 S.W. 306

182 Ky. 185

LAWLER v. COMMONWEALTH.

Court of Appeals of Kentucky.

November 26, 1918

Appeal from Circuit Court, Kenton County.

James Lawler was convicted of murder, and he appeals. Affirmed.

John B O'Neal, of Covington, for appellant.

Chas H. Morris, Atty. Gen., and Overton S. Hogan, Asst. Atty Gen., for the Commonwealth.

THOMAS J.

The appellant, James Lawler, was tried and convicted under an indictment charging him and Patrick Carney, alias Kearney, with the murder of Andrew Nordmeyer, the jury fixing his punishment at death, and to reverse the judgment he prosecutes this appeal.

Two men were killed upon the same occasion, John Rhem and Andrew Nordmeyer. Appellant and Kearney were jointly indicted under separate indictments for the killing of each of them, and the codefendant, with appellant, was tried and convicted under the indictment for the murder of John Rhem. He prosecuted an appeal to this court, but the judgment was affirmed in the case of Carney, alias Kearney, v. Commonwealth, 181 Ky. 443, 205 S.W. 408. In the opinion in that case the facts are very fully set out, and they will not be repeated here, except in so far as may be necessary for an understanding of some of the questions raised.

The grounds urged for a reversal are: (1) error of the court in overruling defendant's motion for a change of venue; (2) error in permitting the jury to view the premises without defendant being present; (3) error in failing to swear the officer in charge of the jury, and who accompanied it when the premises were viewed; (4) error in permitting what is called a rogues' gallery picture of defendant to remain on a table in the courtroom during the trial; (5) error in the admission of evidence; (6) because the evidence is insufficient to show that either defendant shot Nordmeyer; and (7) prejudicial misconduct on the part of the commonwealth's attorney during the trial and in the argument of the case to the jury.

Taking these up in the order named: (1) Conceding that the petition for a change of venue filed by the defendant complied with the provisions of section 1110 of the Statutes, the evidence heard upon that motion fully authorized the ruling of the court in denying it. A number of witnesses, among whom were some of the best and most substantial citizens of Kenton county, were introduced by the commonwealth and emphatically stated that in their opinion there was no such prejudice against the defendant as would deprive him of a fair and impartial trial, or of a fair and impartial jury. While the commonwealth's witnesses upon that hearing stated that there existed an indignant feeling against the perpetrator of the crime, still there was no adverse sentiment against the defendant, or any disposition to visit punishment upon him, except it be proven that he was one of the perpetrators of the murder. The motion for a change of venue is one which addresses itself to the sound discretion of the trial court, and it has a number of times been said by this court that such discretion will not be interfered with, unless it clearly appears to have been abused. Kearney v. Commonwealth, supra; Heck v. Commonwealth, 163 Ky. 518, 174 S.W. 19; Howard v. Commonwealth, 26 S.W. 1, 15 Ky. Law Rep. 874; Crockett v. Commonwealth, 100 Ky. 382, 38 S.W. 674, 18 Ky. Law Rep. 835. The situation here presented may be said to be precisely the same as that presented in the Kearney Case, supra, and under facts quite similar it was there held that there was no error in this regard. No change of public sentiment between the Kearney trial and this one is shown to have taken place. The only intervening fact was the conviction of Kearney, which we cannot conceive would affect the case as relating to the appellant. We therefore conclude that this objection is not well taken.

The second objection urged for a reversal was also presented in the Kearney Case since the defendant there did not accompany the jury when it viewed the premises. In that case, as in this, the objection was made for the first time in the motion for a new trial, and as in that case, so in this, there was no refusal to permit the appellant to accompany the jury, since he made no offer and expressed no desire to do so. On the contrary, the motion for the view in this case was made by defendant's counsel, and it was through his instigation that the view was made. He not only had notice when the jury would be conducted to the premises, but at the time he was again notified and expressed his determination not to attend. Upon the trial of the motion for a new trial it was clearly shown that nothing was said or done by the officer having the jury in charge, or by any one else while the view was being made, except to permit the jury to pass through the building where the tragedy occurred.

It is here insisted that counsel for defendant did not learn of his client not accompanying the jury until after the case had been submitted; but he did learn of it before the jury arrived at a verdict, and in ample time to take advantage of the error (if it be one) by moving for a discharge of the panel and a continuance of the case. This, however, was not done. But it is insisted that this case differs from the Kearney Case on this point, in that a view of the premises was calculated to furnish evidence on a vitally contested point; i. e., whether defendant or Kearney shot Nordmeyer, conceding both were present. This might be admitted to be true in some respects, but on the trial there was an absolutely correct plat of the premises introduced and used before the jury, which showed the true location of doors and partitions referred to in the evidence and their relative positions toward each other, and we cannot see how a mere look at the thing itself would be any more enlightening than what would be furnished by an admittedly correct drawing. Moreover, defendant's defense was an alibi, and if this was untrue the jury, under the evidence, could scarcely have arrived at any other conclusion than that either Kearney or defendant--most probably the latter--shot the deceased, Nordmeyer. Under the circumstances we feel compelled to follow the opinion of this court in the Kearney Case rendered under practically the same facts.

Upon the third contention but little need be said. It is not certainly shown, independent of the record, that the officer having the jury in charge when it viewed the premises was not sworn as required by section 236 of the Criminal Code. But when we examine the record it is found to contain this recitation:

"Defendant moves to permit the jury to view the premises. Said motion is sustained. The sheriff is sworn to take charge of the jury."

This statement as to the swearing of the sheriff, made immediately in connection with and following the order sustaining the motion made by the defendant for the jury to view the premises, we must conclude was a swearing of the sheriff for that purpose.

The contention growing out of the fourth objection is that during the trial a Cincinnati policeman was introduced by the commonwealth for the purpose of identifying a photograph of the defendant which the policeman was ready to say appeared in a rogues' gallery; but the court declined to permit that testimony to be introduced. The photograph of the defendant, according to the affidavit of his counsel filed on the hearing of the motion for a new trial, was permitted to remain upon a table located within the bar, together with other papers thereon. Whether any of the jury saw this picture is not shown, nor are we informed whether the jury was sufficiently near the table to permit any of them to see the picture, conceding that it always remained visible. Furthermore, if they had seen the picture, there is nothing upon it (it having been filed with the record) to connect the defendant with any rogues' gallery, or any other fact casting a reproach upon him. This fact, if error at all, is manifestly so nonprejudicial, trifling, and technical as not to be entitled to serious consideration, and we find no fault with the judgment upon this ground.

Under the fifth ground contended for, our attention is called to no testimony offered by the commonwealth nor to the rejection of any offered by the defendant claimed to be erroneous; but counsel insists that a reading of the record will show such to exist. However, a close reading of the record has disclosed but few instances where the ruling of the court in either of the particulars mentioned was objected to by the defendant, and they are not of a substantial nature and clearly not prejudicial.

In considering the sixth objection it will be necessary to make a brief statement of some of the testimony. To begin with there can be no reasonable doubt but that the defendant was present upon the occasion of the homicide, as will appear from the facts related in the opinion in the Kearney Case, to which we refer. It might be added that the testimony upon this trial showed that at least four eyewitnesses identified defendant as being one of the burglars present and participating. An equal or greater number of witnesses identified the defendant as being in the city of Covington on that evening, some time between 8 o'clock p. m. and the time of the commission of the crime,...