McGill v. Com.

• Decision Date: 01 March 1963
• Citation: 365 S.W.2d 470
• Parties: Virgil McGILL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 470

365 S.W.2d 470

Virgil McGILL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

March 1, 1963.

W. R. Gentry, Jr., E. E. Hubbard, John S. Kelley, J. Smith Barlow, Jr., Bardstown, for appellant.

John B. Breckinridge, Atty. Gen., Ray Corns, Asst. Atty. Gen., Frankfort, for appellee.

STEWART, Chief Justice.

Virgil McGill was convicted of voluntary manslaughter under an indictment charging wilful murder and, in addition, as he was at the same time indicted and it was established he was convicted twice before of a felony, the jury returned a verdict that his punishment be fixed at life imprisonment under the Habitual Criminal Act, KRS 431.190.

It is claimed the trial court erred to the prejudice of appellant when: (1) It admitted testimony of the commission by him of another homicide; (2) it permitted evidence to be introduced of the perpetration by him of three previous felonies; and (3) it refused to allow him to present proof of three felony convictions of the decedent. These will be considered in the order given.

The facts, briefly stated, are that appellant and the deceased were father and son. Both had been drinking heavily but had had no previous difficulty and, on the day of the killing, they got into a brawl which culminated in the father shooting his son. Appellant contended his son attacked him in a drunken rage and that the gunshot wounds he inflicted, from which the son died, were produced in his necessary self-defense.

The first ground urged for reversal grew out of facts testified to by his daughter. She stated she was at the home of her father on the occasion of the shooting. Both were sitting on the front porch with her brother who was killed and two others. She said her father told her that he had 'an urge to kill,' that certain people had made him mad, and that he was going to kill someone before the sun went down that day. When asked if her father made any further statement relative to his urge to kill, the daughter replied:

'Well, when he had made this statement to me, I told him, I said: 'Daddy, you don't know what you are saying; you shouldn't say things like that. You know you killed once and you don't want to do it again.' He said: 'Yes, I have killed one man. It doesn't bother me and it won't hurt me one bit if I kill another."

This conversation took place an hour to an hour and a half before his son was slain. At the time this testimony was introduced, appellant had not yet taken the witness stand, so that what was stated by the daughter must be considered substantive evidence. An objection, which was overruled, was duly made to the introduction of this testimony on the theory that it constituted proof of another crime unconnected with the offense for which appellant was being prosecuted. It is maintained here the trial court committed a reversible error in permitting this type of evidence to be presented to the jury. The cases relied upon by appellant to uphold this argument are Manning v. Commonwealth, Ky., 328 S.W.2d 421; Powell v. Commonwealth, 308 Ky. 467, 214 S.W.2d 1002.

We conclude the evidence complained of was competent for the reason that it showed an evil motive, namely, an intent to commit the homicide. In 1 Wharton's Evidence, sec. 289, pp. 662-663, the principle of law which would make such testimony competent under the facts given is thus stated: '* * * the declarations of the defendant indicating that he was in an ugly frame of mind, and disposed to commit some crime, though not the particular crime for which he is on...