McDaniel v. Commonwealth

• Decision Date: 07 November 1919
• Citation: 185 Ky. 608,215 S.W. 544
• Parties: MCDANIEL v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

215 S.W. 544

185 Ky. 608

MCDANIEL v. COMMONWEALTH.

Court of Appeals of Kentucky.

November 7, 1919

Appeal from Circuit Court, Warren County.

Bradley McDaniel was convicted of murder, and he appeals. Affirmed.

See also, 181 Ky. 766, 205 S.W. 915.

Sampson J., dissenting.

C. B Larrimore, of Munfordsville, and Bradburn & Harlin and Max B. Harlin, all of Bowling Green, for appellant.

C. H. Morris, Atty. Gen., and O. S. Hogan, Asst. Atty. Gen., for the Commonwealth.

THOMAS J.

On April 22, 1918, the appellant, Bradley McDaniel, a colored boy about 18 years of age, shot and killed Dee Spears, a white man, in the town of Smith's Grove, in Warren county. He was indicted by a specially called grand jury, in which he was charged with the crime of murder. The special term of court at which the indictment was found convened on May 14, 1918, and the indictment was found and returned in the forenoon of that day, and the trial commenced that afternoon. The defendant was convicted, and his punishment fixed at death, and to reverse the judgment pronounced upon that verdict he prosecuted an appeal to this court, and the judgment was reversed solely upon the ground that the court should have granted a continuance of the case after the return of the indictment to such a time as would afford the defendant and his counsel a reasonable opportunity to make preparations for the trial.

The opinion will be found under the style of McDaniel v. Commonwealth, 181 Ky. 766, 205 S.W. 915, and in it we said:

"After a careful consideration of this record and the aid of oral argument, as well as briefs by attorneys representing the commonwealth and the accused, we have reached the conclusion that the judgment appealed from should be reversed, and the defendant granted a new trial, and this upon the sole ground that the motion for a continuance should have been sustained."

Upon a return of the case a second trial resulted in the same verdict, followed by the same judgment, and to reverse it defendant prosecutes this appeal.

On the first appeal, as well as on the present one, the grounds urged and relied on for a reversal of the judgment are identical, with the exception of one point, which will be hereafter noticed. They were and are: (1) That the indictment should have been quashed, because the order appointing the jury commissioners who filled the wheel from which the grand jury that found the indictment was drawn was not signed by the judge at the time, and not until a subsequent term; (2) that the verdict is not sustained by the evidence; (3) that the court allowed improper testimony to be introduced; (4) that the court failed to admonish the jury concerning the purpose and effect of certain testimony.

In disposing of the first ground upon the former appeal we said in the opinion, supra:

"Passing now to other matters, there appears no reversible error in the ruling of the trial court in reference to the indictment or the manner in which the jury was selected, and so we will turn to the motion and grounds for a continuance."

The ground based upon the insufficiency of the evidence to sustain the verdict was not referred to in that opinion, but because it was presented by the record and argued upon appeal it must now be determined on this appeal that the question is res judicata, if the facts upon the two trials are substantially the same. New Bell Jellico Coal Co. v. Sowders, 162 Ky. 443, 172 S.W. 914; Ky. Traction & Terminal Co. v. Downing's Adm'r, 159 Ky. 502, 167 S.W. 683; N., C. & St. L. Ry. Co. v. Banks, 168 Ky. 579, 182 S.W. 660; City of Louisville v. Fidelity & Columbia Trust Co., Ex'r, etc., 182 Ky. 551, 206 S.W. 778; Consolidation Coal Co. v. Bailey, 183 Ky. 204, 208 S.W. 762; Thornton v. Durrette, 183 Ky. 267, 209 S.W. 49; Cumberland Ry. Co. v. Girdner, 184 Ky. 375, 212 S.W. 105. Many other cases will be found referred to in these opinions.

It will be found that the rule does not apply alone to questions which were expressly determined by the former opinion, but to all questions which were presented and which might have been determined, but not referred to in the opinion. Thus in the Bailey Case, in speaking of the scope of the rule, we said:

"The rule is well settled that the opinion of this court on the first appeal of the case is the law of that case upon all subsequent appeals, where the facts are substantially the same, not only as to errors relied upon for reversal on the first appeal, but also as to all errors relied upon and not noticed in the opinion, all of which appear in the record on the first appeal and which might have been, but were not, relied on. Consolidated Coal Co. v. Moore, 179 Ky. 293 ; N., C. & St. L. Ry. Co. v. Henry, 168 Ky. 455 ; Dupoyster v. Ft. Jefferson Improvement Co., 121 Ky. 518 [89 S.W. 509, 28 Ky. Law Rep. 504]; Ill. Life Ins. Co. v. Wortham, 119 S.W. (Ky.) 802; Stewart's Adm'r v. L. & N. Ry. Co., 136 Ky. 717 ."

In the Thornton Case, speaking upon the same point, it is said: "The judgment of this court on the former appeal being the law of the case, all questions which were then presented or were properly before the court are as conclusively settled, though not referred to in the opinion, as if they were specifically mentioned and considered."

The rule applies with equal force in criminal cases as it does in civil cases. Slaughter v. Com., 152 Ky. 128, 153 S.W. 46; Arnold v. Com., 62 S.W. 15, 23 Ky. Law Rep. 182; Gambrel v. Com., 142 Ky. 839, 135 S.W. 404.

In the Slaughter Case the defendant was indicted for murder, and was convicted, his sentence being fixed at death, and upon his appeal the judgment was reversed solely upon the ground of improper argument by the commonwealth's attorney in the closing address to the jury. Slaughter v. Com., 149 Ky. 5, 147 S.W. 51. It was contended upon the first appeal of that case that the evidence was insufficient to sustain a conviction for murder, but it was held otherwise, and upon the second appeal the same contention was made, but the opinion held that the question was foreclosed by the first opinion, saying:

"The evidence on the second trial is substantially the same as that heard on the first trial. It is well settled that a decision by this court on a former appeal is the law of the case, and is binding, not only on the trial court, but this court as well. This rule applies both in civil and criminal cases."

So that, were we inclined to hold that any of the matters complained of upon the first trial which are also found in this record were erroneous, we would be prevented by the above rule of practice from considering them upon this appeal. But out of abundant caution, arising from the fact of the severity of the punishment, we have concluded to briefly notice the errors relied on, dismissing, however, ground (1), because it was expressly determined in the first opinion to be insufficient.

Taking up ground (2), the record discloses that the killing occurred in the early afternoon in front of the blacksmith shop operated by the deceased. The defendant was in the employ of and working for Lester Wright, a white man. In an automobile they went to the shop of the deceased for the purpose of having some harrow teeth sharpened and to have them stocked. Wright went into the shop, and while he was there defendant brought in one load of the harrow teeth, and was directed by deceased where to lay them, when he returned for the second and last load. In the meantime Wright had gone out of the shop to his machine, and had gotten into it, when the difficulty commenced. How it commenced and what occurred is thus told by the defendant in his testimony:

"When I got to the shop, Mr. Lester gets out and goes into the shop, and I gets the teeth out, about half of them, and then packed them out, and I asked Mr. Dee where I was to lay them, and he said, 'Lay them down anywhere;' and I goes on then and lays the others down, and starts out, and Mr. Dee says, 'Bradley?' and I says, 'Sir;' and he says, 'They tell me you have been beating up that boy of mine;' and I says, 'Not first; he hit me with a rotten potato;' and I says, 'Mr. Dee, I don't bother your boy; I attend to my own business;' and he says, 'Get out of here;' and I starts out, and I got off of the pavement down on the street, and he throwed the plank at me, and when he threw the plank I looked back, and I was getting close to the car, and he was going to get a 2 X4 under an old wagon, and I says, 'Mr. Dee, don't do that;' and he says, 'You God damned son of a bitch, I will break your neck;' and I pulled my pistol and shot him."

He then said that he shot five times very rapidly, and deceased fell where friends afterwards found him.

Wright, the only other witness who was immediately present, testified that:

"When Bradley put the teeth in the car, I was sitting in the front seat, preparing to start the car, and I told him to get in and I pulled out in the street and turned around, and drove to the shop, and when I got to the shop I told him to get the teeth, and I went in the shop and was talking to Mr. Spears about when he could get the harrow teeth fixed for me and some work he was doing then, and on the first trip Bradley made he asked Mr. Spears where he must put the teeth, and he replied, 'Anywhere' there in the shop; and as he came in with the second load I went back to the car to start the engine, and he carried the second load in and was returning to the car, and as he passed through the door Mr. Spears called to him and asked him what he meant by jumping on his boy and beating him up, and Bradley replied, 'I didn't jump on your boy and beat him up; the boys were throwing potatoes at me, and I slapped him;' and Mr. Spears said, 'You started this fuss with the boy, and I...