McIntosh v. Commonwealth
| Decision Date | 25 April 1930 |
| Citation | 27 S.W.2d 971,234 Ky. 192 |
| Parties | McINTOSH v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Rehearing Denied June 6, 1930.
Appeal fro Circuit Court, Owsley County.
Green McIntosh was convicted of manslaughter, and he appeals.
Affirmed.
A. H Patton, of Jackson, for appellant.
J. W Cammack, Atty. Gen., and S. H. Brown, Asst. Atty. Gen., for the Commonwealth.
The appellant, Green McIntosh, and his son, Ed McIntosh, were jointly indicted for the murder of Garrett Turner, Green McIntosh as principal and Ed McIntosh as aider and abettor. On his separate trial Green McIntosh was convicted of the crime of manslaughter, and his punishment fixed at confinement in the penitentiary for a period of 21 years.
He urges on this appeal that the judgment should be reversed because (1) the verdict is flagrantly against the evidence (2) the court erred in excluding certain testimony; (3) the jury was guilty of misconduct; and (4) the court erred in instructing the jury.
Appellant was a tenant on the farm of Garrett Turner. He had worked for Turner, and had rendered a bill for $35. Turner had paid him $10, but claimed the work was reasonably worth only $25. On Sunday morning, June 16, 1929, Turner left his home to go to the back part of his farm. It was necessary for him to pass appellant's home, and, before leaving, he made out a check for $15 payable to appellant. He was riding a mule, and stopped at appellant's home and called him out. He tendered the check to appellant in payment of the balance due for the work that had been performed by appellant, and a dispute arose between them, which resulted in the death of Turner. His body was found lying in the road in front of appellant's home. He had been shot at close range with a shotgun, the shot entering about the center of the back and ranging upward. Immediately after the killing appellant and his son, Ed McIntosh, started down the road toward Booneville. As they passed Turner's home, appellant called to one of Turner's children who was in the yard, and said: "I killed your daddy up yonder a minute ago." Turner's wife and sister-in-law were at Turner's house, and claimed they heard appellant make this statement. Appellant at the time was carrying the shotgun. He later met Turner's brother and one or two others, and informed them that he had shot Turner. The only eyewitnesses to the killing were appellant, his son, and his daughter. The testimony of appellant and his children was to the effect that Turner came to his home on the Sunday morning in question and called him out, that Turner tendered him a check which was made out for the sum of $15, and that a dispute arose as to the amount due, and that Turner dismounted from the mule which he was riding, and said: "Damn you, I am going to pay you now," and picked up a stick and began to strike at appellant. Appellant grappled with Turner, and, while attempting to hold him and prevent Turner from striking him with the stick, Ed McIntosh came from the house with a shotgun and shot Turner in the back, killing him instantly. Appellant testified that he did not know of his son's presence until the shot was fired.
The evidence for the commonwealth showed that the shot was fired at close range, and that it ranged upward, and that deceased's right arm was bruised and lacerated in two places as though from a fall. There was also evidence to the effect that there was ill feeling on the part of appellant toward Turner, and that he had made a threat to settle with Turner. While the evidence as to how the killing occurred is meager and not altogether satisfactory, it was sufficient to warrant submission of the case to the jury and to sustain the verdict.
Appellant denied that he stated to members of Turner's family and the others who testified on that point that he had shot the deceased, and he offered to prove by a number of witnesses that shortly after the killing he told them that his son, Ed McIntosh, had fired the shot. The court properly refused to admit this testimony. The statements sought to be introduced were merely self-serving declarations.
One of the grounds relied on for a new trial was alleged separation of the jury, and the court heard proof on this ground which is incorporated in the bill of exceptions. It appears that, after the case had been submitted to the jury, and before a verdict had been returned, the jury and the sheriff, in whose custody they had been placed, were in a room in a hotel. This room opened onto a porch. One of the jury stepped out of the room onto the porch and remained there a few minutes. The proprietor of the hotel and his son were sitting on the porch. The door remained open, and the juror at all times was within a few feet of the sheriff and the other members of the jury. All persons present testified that nothing was said about the case, and the proprietor of the hotel testified that the only remark made by the juror while he was on the porch was concerning the weather. The attorney for appellant passed along the street in front of the hotel and observed the juror on the porch. This occurrence took place about 6:30 a. m., and the verdict was returned about 9:30 a. m. on the same day. No motion to discharge the jury was made, and the occurrence was not called to the attention of the court until after the verdict was returned. The evidence heard by the court on this ground for a new trial discloses that the juror remained in full view of the sheriff, and that no communication passed between him and any outsider about the case on trial.
In Wynn v. Commonwealth, 188 Ky. 557, 222 S.W. 955, 956, where a similar contention was made, we said:
"It is well recognized that a jury in a criminal case, in charge of...
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