Meadors v. Commonwealth

• Decision Date: 06 February 1940
• Parties: Meadors v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

Page 622

281 Ky. 622

Meadors v. Commonwealth.

Court of Appeals of Kentucky.

February 6, 1940.

1. Criminal Law. — In murder prosecution, whether accused's confession had been extorted by threats and promises in violation of Anti-Sweating Act was for jury (Ky. Stats., sec. 1649b-1 et seq.).

2. Criminal Law. — The better practice requires that all instructions should be given before there is any argument, but it is ordinarily not prejudicial error for the court to give a necessary instruction during or after argument, if parties are afforded an opportunity to discuss or argue the case and that instruction.

3. Witnesses. — Where there is a stenographic transcript of previous testimony or statements, it is proper practice for purpose of impeachment of a witness to ask if he was not asked certain questions and made certain answers, and if he denies them, then for the stenographer to testify from his notes or an accurate transcript that those questions and answers were asked and made, and it is not necessary that transcript, such as a deposition, should have been filed as a part of the record.

4. Witnesses. — Before a writing can be used as a means of contradicting a witness he must be given an opportunity to read or hear all of it read and be given a chance to explain it (Civil Code of Practice, secs. 598, 604; Ky. Stats., secs. 1019a-6 et seq., 4643 et seq.).

5. Criminal Law; Witnesses. — If one party puts in evidence a part of the admissions of conversation of the other, the latter is entitled to produce or draw out by cross-examination testimony concerning all that was said upon the occasion (Civil Code of Practice, secs. 598, 604; Ky. States., secs. 1019a-6 et seq., 4643 et seq.).

6. Witnesses. — Where prosecution introduces statements of accused tending to show that he is guilty, he has right on cross-examination to elicit from witnesses relating those statements the whole of the relevant and material subject matter, notwithstanding statements so drawn out are self-serving or favorable to him.

7. Witnesses. — In impeaching a witness by proving contradictory statements, witness ought to be permitted to state any facts which will explain or reconcile seemingly or actually in consistent utterances, or to show the relation of one to another and the meaning and purpose of each.

8. Witnesses. — Generally, the witness sought to be impeached, or his counsel, should be permitted to inspect and to use on redirect examination the transcript or any other writing used in cross-examination if it is in court, whether it be filed of record or not.

9. Witnesses. — The scope and extent of use of transcript used to impeach a witness and presentation of portions of its contents should be limited by court in its discretion and confined to particular subject matter, having due regard for the rule of relevancy.

10. Criminal Law; Witnesses. — In murder prosecution wherein accused denied truth of confession and stated that statements had been extorted from him by threat and promises in violation of Anti-Sweating Act, failure to permit accused's counsel to inspect transcripts allegedly containing accused's statements and to reexamine witnesses constituted prejudicial error (Ky. Stats., secs. 1649b-1 et seq., 1019a-6 et seq., 4643 et seq.).

11. Criminal Law. — In prosecution for conspiracy to murder, wherein evidence was properly permitted to take a wide range, trial court following definition of "conspiracy" should have instructed that if jury believed independent of conspirators' statements made in absence of accused that conspiracy was formed with accused to kill, and that such conspiracy existed at time acts were done or statements made, then jury might consider such acts and statements of any conspirator, but if jury did not believe aside from such acts and statements of conspirators that conspiracy existed at the time, jury should not consider such acts or statements as evidence for any purpose.

Appeal from Whitley Circuit Court.

W.B. Early and L.O. Siler for appellant.

Hubert Meredith, Attorney General, and Wm. F. Neill, Assistant Attorney General, for appellee.

Before J.J. Tye, Judge.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Reversing.

The appeal is by Taft Meadors from a judgment of death for the murder of George Hamblin.

The general facts are stated in Canada v. Commonwealth, 281 Ky. 641, ___ S.W. (2d) ___, in an opinion delivered today. Additional particular facts as to the appellant's guilt were shown in substantial proof of identification of his footprints at the scene of the crime and a confession reduced to writing and signed by him. The confession is in substance that by Albert Canada's express direction he, Taft Meadors, Henry Earls, Orville Richmond and Everett Canada went to Hamblin's home and killed him.

Upon his arrest on Monday morning the defendant was taken to the office of the commonwealth's attorney and questioned by officers and others. That night he was taken from the jail to the same place and again questioned. Upon neither occasion did he admit guilt or self-incrimination. On Wednesday night following the defendant was again taken there and late that night he made a complete confession. It was transcribed by a stenographer and later signed by the defendant. The defendant denied the truth of the confession and said the statements had been extorted from him by threats and promises. His testimony clearly established a violation of the Anti-Sweating Act. Section 1649b-1 et seq., Kentucky Statutes. The testimony in contradiction was evasive and weak, but was not such that the court could say as a matter of law that the confession had been obtained in violation of the statute. The contradiction was such that under the present practice the court was required to submit to the jury the finding of fact upon which they might or might not regard the confession as competent evidence. Bennett v. Commonwealth, 226 Ky. 529, 11 S.W. (2d) 437. However, such instruction was not given until after an argument had been made in behalf of the accused and of the commonwealth, respectively. Then an instruction was given substantially like that approved in Bennett v. Commonwealth, 242 Ky. 377, 46 S.W. (2d) 484. There was further argument for each side after this instruction was given. It is much the better practice, and always desirable, that all instructions be given before there is any argument of a case. But it is ordinarily not prejudicial error for the court to give a necessary instruction during or after argument if the parties are afforded an opportunity to discuss or argue the case and that instruction. Middleton v. Commonwealth, 136 Ky. 354, 124 S. W. 355; Tucker v. Commonwealth, 255 Ky. 635, 75 S. W. (2d) 220.

Throughout the trial, defendant's counsel consistently objected to the introduction of evidence concerning the confession and statements made by the defendant at the three inquisitions. During his cross-examination, as the predicate for contradiction, he was asked if on one or the other of those occasions he had made certain statements which were not in accord with his testimony. The court overruled the defendant's motion to exclude all of it because the transcripts from which the attorney for the commonwealth had read the questions and answers had not been made a part of the record and had not been exhibited to the defendant's attorneys. Again, when the stenographer was called to testify as to the contradictions, defendant's counsel moved the court that the transcript be produced and that they be permitted to examine it. The court overruled the motion. Was the denial of an inspection of the transcripts prejudicial error?

Where there is a stenographic transcript of previous testimony or statements, it is proper practice for the purpose of impeachment of a witness to ask if he was not asked certain questions and made certain answers, and if...