Loving v. Commonwealth

• Decision Date: 07 December 1882
• Citation: 4 Ky.L.Rptr. 457,80 Ky. 507
• Parties: Loving v. The Commonwealth.
• Court: Kentucky Court of Appeals

80 Ky. 507

4 Ky.L.Rptr. 457

Loving v. The Commonwealth.

Court of Appeals of Kentucky.

December 7, 1882

1. It is a rule of evidence that a witness cannot be cross-examined upon facts collateral and irrelevant to the issue for the purpose of contradicting him, his answers as to such facts being conclusive against the party calling him.

2. A witness who fails to testify as to substantive facts cannot be asked if he has not made statements to others, out of court, that such facts exist for the purpose of proving that he had made such statements, as that would be an attempt to make declarations out of court substantive testimony.

3. The errors complained of as to the formation of the jury will not be considered, as no exceptions were taken.

4. The instructions fairly expound the law applicable to the issue.

APPEAL FROM WARREN CIRCUIT COURT.

R RODES AND WRIGHT & MCELROY FOR APPELLANT.

1. The court erred in the formation of the jury. (Crim. Code, secs 190, 191, 192.)

2. Erred in instructions to the jury.

3. The court certainly erred in permitting the cross-examination of Taylor and Jackson. (Crim. Code, secs. 281, 199; Brady vs. Commonwealth, 11 Bush, 351; Kennedy v. Ib., 14 Ib., 354.)

P. W HARDIN, ATTORNEY GENERAL, FOR APPELLEE.

1. The court will see that Taylor was proven to be of bad character and not worthy of belief.

2. The testimony of Jackson amounts to nothing. Neither should be shielded from contradiction by a convenient want of memory.

3. There is no error in the instructions.

4. No exception was taken as to the formation of the jury.

OPINION

HARGIS CHIEF JUSTICE:

On the afternoon of the 22d of February, 1881, John Loving, a single man, thirty-one years old, living about three miles from Bowling Green, in which his mother resided, came into that town without any " especial business."

After being about the town in different public places, and drinking two glasses of beer, near midnight he stopped in at Johnson's saloon, where he found a man by the name of Hines and the bar-keeper Grubbs. They soon engaged in throwing dice for beer, and he there drank two glasses of beer.

Hines settled for what he lost and went out, and Loving then went to settle with Grubbs for what he lost, and an altercation ensued between them, which attracted the attention of his brother, the appellant, L. L. Loving, who came from the billiard-room to the door of the saloon, and inquired what was the matter. On being informed, he said, in substance, if there was any fighting to do he would do it, or he would settle it, or " let me settle it."

He then returned to the billiard-saloon, apparently to resume the game in which he was engaged. The witnesses differ widely as to the conduct of Grubbs, the evidence of some of them tending to prove that, so soon as the appellant made the statement that he would do the fighting or settle it, Grubbs looked angrily at him, went behind the bar counter, and reached under or above it, and immediately came out and across a small room located between the saloon and billiard-room, saying in a loud tone, " I can clean out the whole damn kit," " " you can't scare me," with his hand in his pocket, and while approaching the door of the billiard-room and across the hall which separated it from the small or " stove" room through which he had passed, Grubbs was shot and killed by the appellant, who was in or near the billiard-room door, and towards whom Grubbs was advancing at the time.

Buckner Duncan, a young man twenty-one years old, a clerk in his father's store, testified that " Grubbs appeared in the door of the stove-room and said: " Now, God damn you, if both of you want to jump on me, I can clean out the whole kit.' Defendant turned around immediately and asked Grubbs what he said, and Grubbs repeated it, and kept coming straight toward the defendant, who was standing in the pool-room (billiard-room) door. I thought from Grubbs' manner there was to be a fight, and I jumped behind the wall and grabbed defendant to pull him also behind the wall, telling him he might get hurt. Just as I did this, defendant pulled his pistol and fired."

Other evidence in the case tends to prove that Grubbs had his hand up, with palm extended, at the time he was shot, and that his words were not so offensive or threatening as detailed by the appellant's witnesses.

Whether the witnesses for the Commonwealth, or those for the appellant, correctly stated what was said and done, is a question belonging to the province of the jury, and we only suggest its conflicting character for the purpose of an intelligent understanding of the questions of law raised upon this appeal.

It appears that the door opening into the hall where Grubbs was shot was the only door to the billiard room; that a pistol was kept in a drawer behind the saloon counter, and that one of the attendants about the establishment slept in a small room cut off from the " stove" room with a pistol under his head.

When Grubbs' body was examined by the coroner there was no pistol found on it.

In view of the circumstances of this case, it became important for the appellant to show, when Grubbs was shot, that he had a pistol on his person, and there was reasonable grounds to believe that he intended to use it on the person of the appellant.

And for the purpose of showing that Grubbs had a pistol, the appellant introduced as a witness a man by the name of Taylor, who testified that he was present immediately after Grubbs was shot, and sat up with the body that night; that before the coroner came, J. B. Johnson, the owner of the saloon and uncle of Grubbs, came in " and walked once or twice back and forth, and then went up to the body, reached over the body, felt under it, and when he straightened up he had a pistol in his right hand. He then put the pistol up his left sleeve, and as he did so said, ‘ Boys, say nothing about this,’ and went into the bar-room behind the counter." He also stated that J. A. Jackson was present sitting on a beer keg rather in the corner at the time Johnson took the pistol from Grubbs' body.

Jackson was then introduced as a witness, and testified as follows:

" I was sitting on a keg in the hall; Taylor was standing up near the corpse, and between me and the body; Johnson came in the hall up to the body, and leaned over it, and seemed to be ‘ fumbling’ some little time--two or three minutes; just as he straightened up he said, ‘ Say nothing about this, boys,’ and went into the next room; I was on a keg in the corner next to State street, and Johnson's back was to me; I did not see the pistol; Taylor was between me and Johnson when the latter leaned over the body."

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