Merriweather v. Commonwealth

• Decision Date: 26 October 1904
• Citation: 82 S.W. 592,118 Ky. 870
• Parties: MERRIWEATHER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

82 S.W. 592

118 Ky. 870

MERRIWEATHER v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 26, 1904

Appeal from Circuit Court, Christian County.

"To be officially reported."

Frank Merriweather was convicted of murder, and appeals. Reversed.

N. B Hays, Atty. Gen., and Loraine Mix, Asst. Atty. Gen., for the Commonwealth.

O'REAR J.

Appellant Frank Merriweather, and eight others, including George Holland and Dick Carney, all negroes, were indicted for the willful murder of an unknown white man committed in Christian county on November 14, 1903. The murdered man was a stranger in that community. He appeared in a saloon in the town of Pembroke after dark on the 14th of November, 1903--Saturday night--and bought some whisky. In paying for it he exhibited some money, and besides got some silver exchanged for paper money, which he added to a roll of bills, also exhibited in the saloon. Dick Carney is shown by the evidence in this case to have seen the occurrence above narrated, and to have followed the stranger out. There were a number of people in and about the saloon at the time, and others went out directly after the stranger. Persons passing through Chilton woods, about 1 1/2 miles from Pembroke, some hour or so later, discovered a fire built near a tree, and a man having the appearance of this stranger sitting alone by it. On the following Tuesday the body of the stranger was found partially hidden beneath a pile of rails near where the fire had been. The body appeared then to have been dead two or three days. Hogs had gotten to it and partially eaten it. The skull had been crushed by a bludgeon or some blunt instrument, the throat had been cut, the penis had been cut off, and the face cut or eaten away. There was also evidence that a great hole had been cut in the abdomen. Near the scene of the murder-- for murder it certainly was--there was found an ax handle fitting a double-bitted ax. On this handle was blood and dark hair matching that on the dead body. Blood was spattered on the tree standing near the place where the fire was. There were also blood stains, with a raveling of cloth on the bark of the tree, where a knife had been cut into the bark, evidently for the purpose of cleaning the blood from it. An old glove fitting the right hand was also found near the scene. The glove was identified as belonging to appellant. On Wednesday appellant was noticed to have blood spots on one leg of his trousers. There was proof that appellant owned a double-bitted ax, which had not been seen since the killing. The murdered man was undoubtedly killed for his money, and the body most horribly mutilated by the murderers, either to conceal its identity or to gratify a barbarous lust. Appellant had money immediately after the date of the killing, and had none immediately before. He had not been at work nor been paid any sum in the meantime. There are other circumstances detailed in the evidence tending to establish appellant's guilt, but which it is not deemed necessary to set forth in the opinion, for it is not the province of this court to determine either the guilt or the innocence of the accused, but to see that, if convicted, it shall be upon a trial conducted in the manner which satisfies the law. Appellant demanded and was granted a separate trial from those jointly indicted with him. The verdict of the jury found him guilty, and fixed his punishment at death.

The motion and grounds for a new trial allege the following errors: (1) That the jury was irregularly formed; (2) that irrelevant and incompetent evidence was admitted against him; (3) that the instructions to the jury were erroneous.

1. Appellant suggested in his motion for new trial filed in the circuit court that the jury, and the venire from which it was selected, were all white men, and that his race was discriminated against in its selection, which he claimed was in violation of his rights under the fourteenth amendment to the Constitution of the United States. It is sufficient for the purpose of this case to say that there is nothing in the record showing the race of any of the jurors. Nor is there anything showing what race or races the venire included. Nor was there objection in the circuit court at the time to the jury. On the contrary, the record shows that it was accepted by the defendant without objection.

2. Evidence was admitted to the jury which is claimed to be in the nature of admissions by the defendant. By a number of witnesses it was proved that directly after appellant's arrest he, in company with seven others of those indicted with him, was being taken from Pembroke to Hopkinsville, the county seat. The eight prisoners were chained to each other, but in two groups of four each. They were standing in the waiting room at the depot, gathered about the stove. A number of persons, officers and others, were in the room and without. A crowd had gathered about the depot, but were in the main kept from the room by a guard placed at the door. Under these circumstances, some of the spectators or officers asked several of the prisoners whether they had killed the stranger. George Holland, and others of them, answered that they had; that appellant had knocked him in the head with the ax handle, and that another held him, while yet another cut his throat. To these statements appellant made no response. It reasonably appears that he was within hearing distance of those making the statements. Appellant was confined in the jail immediately after his arrest. So were the others. The jailroom opened into a courtroom. Some of the prisoners were taken by officers, including a police judge, into the courtroom into the presence of a number of persons, and questioned as to the occurrence of the killing. The police judge seems to have made a written transcript of one of the prisoner's statements, and had him to swear to it. Appellant and Dick Carney were during these occurrences confined in a cell in the jail department, but, because the door between the rooms was open, were probably within hearing of, and could see at least, some of the persons in the courtroom. They were from six to ten feet away from those of the prisoners being questioned in the courtroom. They there stated that appellant was present, and struck the blows with the ax handle. Appellant made no response to these statements. The prisoners who made the statements were not introduced as witnesses against appellant. But their statements made in his presence, and presumably within his hearing, were admitted. He objected, and asked their exclusion, which was overruled.

The general rule is that what another said about the transaction under investigation is not relevant as evidence. It is called hearsay. There are, however, numerous exceptions to that general rule. Sometimes classed among these exceptions is where one recited facts in the hearing of the person to be charged, and he assents to their truthfulness. This is allowed upon the ground that such statements by the assent of the person whom it is sought to bind by them made them his statements, and is consequently bound by them as admissions, if they be against his interest; for it is thought to be contrary to the habit of men to admit a matter which is against their interest unless constrained to do so by its very truth. This evidence is admitted at last, not because somebody else made the statement, though in the hearing of the person to be charged, but because the latter has expressly or impliedly ratified and adopted it as his own statement. Express admissions against one's interest voluntarily and understandingly made, though oral, are regarded as competent evidence of much force. It must be clear, however, in such case, that the party to be bound did understand the statement in its exact import, and of his volition and purpose adopted it as his own version of the transaction. On this subject Prof. Greenleaf writes (section 200, Greenleaf, Ev.): "With respect to all verbal admissions, it may be observed that they ought to be received with great caution. The evidence, consisting as it does in the mere repetition of oral statements, is subject to much imperfection and mistake; the party himself either being misinformed, or not having clearly expressed his own meaning, or the witness having misunderstood him. It frequently happens, also, that the witness, by unintentionally altering a few of the expressions really used, gives an effect to the statement completely at variance with what the party actually did say." Of express admissions, though subject to the criticism, or rather caution, made in the foregoing quotation, it may be said that the party has intentionally given them currency by his own speech, and for whatever purpose they can be properly used. Intimately and necessarily connected with that class of admissions is that where they...