Leslie v. Com.

• Decision Date: 05 November 1897
• Parties: LESLIE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

42 S.W. 1095

LESLIE v. COMMONWEALTH.

Court of Appeals of Kentucky.

November 5, 1897

Appeal from circuit court, Monroe county.

"Not to be officially reported."

Walter Leslie was convicted of manslaughter, and appeals. Reversed.

Sherman Spear, S. M. Payton, and W. S. Pryor, for appellant.

Basil Richardson and W. S. Taylor, Atty. Gen., for the Commonwealth.

DU RELLE, J.

Appellant has been convicted of manslaughter. He urges as erroneous the trial court's denial of his application for a change of venue. It appeared that the deceased was a stranger in the county, without friends or acquaintances, while appellant was a member of an influential and well-known family. Upon the evidence on this issue, we do not think the trial court abused its discretion.

It is also urged that the court erred in permitting persons to serve on the jury who stated that they had opinions as to appellant's guilt which would require evidence to remove. The bill of exceptions does show that such statements were made by the jurors, which, however, were modified by subsequent statements. Moreover, the ruling of the court upon this question is not subject to exceptions. Cr. Code, §§ 280, 281; Terrell v Com., 13 Bush, 251.

Much complaint is made of certain interrogatories which were permitted to be made to appellant upon cross-examination when introduced as a witness in his own behalf. He was asked if he was not a gambler, if he did not make his living that way, if he did not belong to and travel with a sleight of hand show, and whether he did not frequent the house of ill fame in which the killing occurred. These inquiries come clearly within the rule laid down in Burdett v. Com. (Ky.) 18 S.W. 1011, in deciding which Judge Lewis said "*** There does not seem to be any good reason why a witness should be privileged from answering a question touching his present situation, employment, and associates if they are of his own choice, as, for example, in what house or family he resides, what is his ordinary occupation, and whether he is intimately acquainted and conversant with certain persons, and the like; for, although these may disgrace him, his position is one of his own seeking." But the commonwealth was permitted, against objection, to ask appellant if he had not been arrested and tried for carrying concealed weapons, and if he had not been arrested for discharging firearms in Tompkinsville. We are inclined to the opinion that this was prejudicial error. The general rule is that the fact that a witness is under indictment may not be proved for the purpose of impeaching him; neither is evidence of his arrest...