Martin v. Commonwealth
| Decision Date | 01 October 1937 |
| Citation | 269 Ky. 688 |
| Parties | Martin v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
1. Criminal Law. — A motion for continuance of homicide prosecution on ground that defendant's wife was necessary witness and could not appear because of illness, and that other witnesses who were not present would testify to facts showing defendant's innocence, was properly overruled, where wife was prevented by law from testifying on defendant's separate trial, and affidavit as to what witnesses would testify disclosed only conclusions and not facts.
2. Criminal Law. — A defendant convicted of manslaughter would not be granted new trial on ground that case did not stand for trial on day case was tried, where procedure by which case was called for trial was in conformity with statutes, and defendant was in court when case was called and he had slightly more than three months to make preparation for trial (Criminal Code of Practice, secs. 186, 187).
3. Criminal Law. — Under statute, circuit court of Laurel county had jurisdiction to try defendant accused of homicide, notwithstanding that deceased was shot in Clay county, where deceased died in Laurel county (Ky. Stats., sec. 1147).
4. Criminal Law. — The trial court has discretion to allow continuance because of absence of witness, or to allow the reading of affidavit of absent witness, where evidence of absent witness is merely impeaching.
5. Criminal Law. — The refusal to grant continuance because of absence of witness subpoenaed by defendant was not abuse of discretion where purpose of procuring attendance of witness was to impeach other witnesses.
6. Criminal Law. — The allowance after jury was sworn, of commonwealth's motion for severance of trial of defendant accused of homicide, was not abuse of discretion where motion was made prior to selection of jury.
7. Witnesses. — A provision of Civil Code of Practice prohibiting husband and wife from testifying against each other is applicable in criminal trials (Civil Code of Practice, sec. 606).
8. Witnesses. — Under statute, husband and wife jointly indicted for offense and tried together can each testify for himself or herself, but if they are separately tried, one cannot be a witness for the other (Civil Code of Practice, sec. 606).
9. Witnesses. — Generally, wife cannot testify for her husband in criminal case.
10. Witnesses. — Under statute, refusal to permit wife accused of homicide to testify for husband accused of homicide was not error where trials of husband and wife were properly severed (Civil Code of Practice, sec. 606).
11. Criminal Law. — An instruction of the Laurel circuit court to find defendant guilty of murder or manslaughter, if with malice aforethought or in sudden heat and passion, he shot deceased in Clay county, and deceased died in Laurel county, was not error, as against contention that Laurel circuit court was without jurisdiction if shooting occurred in Clay county.
12. Homicide. — An instruction that defendant accused of homicide was not guilty if he shot deceased in belief that defendant or his wife or his grandchild or "either of them" were in danger of death or bodily harm at hands of deceased and three other named persons "or either of them," was not prejudicial, as against contention that the words "or any one or more of them" should have been used in place of words "either of them."
13. Homicide. — The refusal to grant a new trial in homicide prosecution for newly discovered evidence consisting of testimony of witnesses who were alleged to have been near scene of shooting was proper where witnesses had concealed their knowledge because they did not desire to testify, and there was evidence that their general reputations for truth were bad.
14. Homicide. — Evidence whether defendant killed deceased in defense of himself or members of his family held for jury.
15. Criminal Law. — Court of Appeals will not disturb verdict on sharply conflicting evidence unless injustice has been done by rendition of verdict.
16. Criminal Law. — Where evidence supports verdict, Court of Appeals will not take place of jury or assume jury's prerogative of weighing evidence or passing on credibility of witnesses.
Appeal from Laurel Circuit Court.
C.R. LUKER and A.T.W. MANNING for appellant.
HUBERT MEREDITH, Attorney General, and JESSE K. LEWIS, Assistant Attorney General, for appellee.
OPINION OF THE COURT BY MORRIS, COMMISSIONER.Affirming.
The grand jury of Laurel county returned a true bill charging Dan Martin and his wife with the murder of Charley Benge. The indictment is out of the ordinary, since it charges the shooting occurred in Clay county, but that after the mortal wounds were inflicted Benge died, as a result thereof in Laurel county. Upon a separate trial appellant was found guilty of manslaughter and his punishment fixed at confinement in the penitentiary for twenty-one years. He appeals.
The shooting occurred in Clay county not far from the Laurel county line, shortly after dark on Saturday, May 30, 1936. On that afternoon, according to appellant's testimony, two or three of appellant's boys had gone to a meeting at the cemetery down the creek from his home. They were delayed in getting home, and his wife and granddaughter had gone down the road to look for them. About a half hour after the two had left, appellant says he heard some shooting from the direction in which they had gone. He went to a rack, procured an automatic shotgun, and, after seeing that there were loaded shells in the magazine, started down the creek. The shells were loaded with buckshot, or a large size shot. As he proceeded, he says he heard more shooting and could hear some one begging, and a voice or voices telling some one to go back up the road or die. As he got nearer, he saw his wife coming up the road and behind her two boys on a mule, driving her up the road. He watched for several moments, the boys on the mule still driving her, and occasionally shooting around her. As they got nearer to where he was, in the road or in a field just off the road, he said to the boys, "Go on down the road and let this old woman alone," and at this time they began to shoot at him.
Appellant admits that he then fired two shots from his shotgun; saw the mule drop. He says that he recognized Benge, but did not know who was with him. He also says that he did not know that Benge was down the road that night, and that he had theretofore had no trouble with him or Cupp, who was one of Benge's companions. It was admitted by appellant that he had theretofore been actively interested in the prosecution of a brother of deceased for the killing of appellant's son-in-law. His testimony, in the main, was substantiated by his grandchild, who was with his wife.
It was shown by the commonwealth that deceased and Dan Cupp were riding a mule, Raymond Cornett on another mule, accompanying them, down the creek. They came to where appellant's wife and Ollie Hammond were standing on the right side of the road. The three eyewitnesses say that the following conversation took place: "She [Mrs. Martin] said, `Where are you going? and Benge told her he was going to Bob Houses,' and she said, `You had better go back up that road,' and Benge said, `No, we have started to Bob's house.'" At this point the witnesses say that appellant, who was in the field just off the road, spoke up and said, "You better go back up that road," and the wife said, "Kill them," and appellant at once fired. His first shot missed, and he then fired two other shots which took effect mainly on Benge and the mule. Cupp received one buckshot wound. The mule, which was also killed, went down throwing Benge on his back. Cupp says he then fired in appellant's direction five or six times, and Benge who was lying on his back fired several times in the air. Cornett and Cupp left Benge lying on the ground and went to a neighbor's home seeking aid for him.
The only other evidence which tended to throw any light on the occurrence was that of persons living in the neighborhood who heard the sounds made by the firing of the weapons. A number testified for the commonwealth and were positive from the reports that the shotgun was fired first; some say two and others three times, and that the pistol shots came afterwards, thus bearing out the testimony of the commonwealth's eyewitnesses. Others — and the numbers are about equal — testify that the pistol shots came first, then the shotgun, and then more pistol shots. The testimony of the witnesses for the commonwealth appears to have been more direct and positive.
On motion for a new trial, a number of grounds were urged in support, and in brief few if any are abandoned. It is first urged that the case did not stand for trial on the day it was tried. Counsel says (and the record shows) that appellant and his wife were indicted on June 10, 1936, on which day a bench warrant was issued, with bond indorsed at $3,000. The sheriff executed the bench warrant on July 3, and took bond. It is argued that the bond did not fix any time or place when appellant should appear, and there had been no order of court assigning the case for trial. The bench warrant directed the accused to answer an indictment in the Laurel circuit court, the bond obligating the appellant to appear before the court, and therein stated the time and place to answer said charge. On October 27, the case was called for trial and the commonwealth answered "ready" and the defendant "not ready" and moved for a continuance, filing in support thereof his affidavit.
The affidavit, as far as we observe, made no reference to any alleged defect in the bench warrant, bond, or to any omission of an order fixing the date of trial. The affidavit set out the fact that appellant's wife was a necessary witness and that she was ill at the time and could not appear. He also named other witnesses who would truly testify to facts showing his...
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