Miller v. Commonwealth
| Decision Date | 12 January 1932 |
| Citation | 241 Ky. 818 |
| Parties | Miller v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
5. Criminal Law. — Argument of commonwealth's attorney held to have aggravated prejudice to accused from admission of hearsay and other incompetent evidence.
The argument affected an important witness for accused who had been impeached on collateral and immaterial matter developed on cross-examination. Argument also stressed alleged threats by accused, of which there was only hearsay evidence.
Appeal from Breathitt Circuit Court.
A.F. BYRD and ERVINE TURNER for appellant.
J.W. CAMMACK, Attorney General, and BASIL P. COOPER for appellee.
Reversing.
The appellant, Walter Miller, was indicted and tried for the crime of willful murder. He was found guilty of voluntary manslaughter, and his punishment fixed at 16 years in the penitentiary. He appeals.
The appellant and his victim were brothers. The appellant's wife left her home the evening before the killing and arrived at the home of deceased, Dock Miller, about 8 o'clock in the nighttime. The appellant, carrying a shotgun, appeared at the home of the deceased about noon of the following day, while the family of deceased was eating dinner. The appellant's wife was engaged in eating at the time of his arrival. On entering the home of his brother, he was invited to dinner. The family of the deceased and the wife of appellant completed their meal before the appellant began eating. Before beginning his meal, he unloaded his shotgun. After completing his meal, he requested his wife to go with him to their home. She did not indicate a willingness to return home. Whereupon, it is claimed by the witnesses for the commonwealth, he threw his arm around her neck and began to force her to leave the house. Before he indulged in this conduct he had loaded his gun and was holding it in his right hand at the time he seized his wife with his left. He forced his wife, with his left arm around her neck, into the yard, carrying his gun in his right hand, with which he was prodding her. At the time the appellant was so doing, the deceased began to stir the fire in the grate, when he decided that more fuel was needed; he left the room and went into the yard, where coal had been placed a few steps from the door, where, employing both hands, he picked up two lumps of coal. At the time he was engaged in this act the appellant was continuing to force his wife to accompany him; he still had his left arm around her neck, the gun in his right hand, and was still prodding her with it. The deceased remarked to appellant, "Don't hurt Julia."
The witnesses for the commonwealth claim that, following this remark of the deceased, the appellant immediately drew his gun on the deceased and shot him. Instantly the deceased dropped to his knees, drew his pistol and fired three shots at the appellant.
The appellant and his nephew, who was present at the time of the transaction, deny, in toto, the testimony in behalf of the commonwealth. The appellant and his nephew claim that while appellant and his wife were walking away from the home of the deceased he, the deceased, drew his pistol and pointed it toward the appellant, then the appellant and deceased shot at each other, the weapons firing simultaneously. Immediately the appellant turned and walked away from the deceased, who fired two more shots. The deceased died presently. The appellant received three slight wounds; one shot passed through his left elbow, another through the upper part of his left arm, and the third grazed the left side of his head, just above the ear. The appellant at once departed and surrendered himself to the officers.
For reversal, he urges: (a) Errors in the introduction of evidence; and (b) improper argument of counsel.
Mrs. Haney McIntosh, a witness in behalf of appellant, testified that she had heard the deceased, seven or eight days next before he was killed, say that he was "briling to split his (Walter Miller's) head open."
On cross-examination she was permitted to be asked if she had heard the appellant say he "was going to break Dock (the deceased) up and he was going to kill him." She stated that the appellant made no such statement. Thereupon, she was permitted to be asked and required to answer if she did not state to Jason and John Miller that she had heard the appellant make such statement. Her response was that she had not made such statement to them or in their presence. The commonwealth was permitted to inquire of Jason Miller if Mrs. Haney McIntosh, at his home, about a month before Dock Miller was killed, had stated to him that she had heard the appellant make the statement that he was going to kill Dock Miller; his answer was in the affirmative. Proper objection was made, and an exception was saved by the appellant to the admission of this testimony.
The witness having answered in the negative the question propounded to her, it was improper to permit the commonwealth to prove by the witness that he had heard her state the alleged threat by Walter Miller against the deceased. This was clearly incompetent, both as substantive evidence and for the purpose of contradiction. By its admission the commonwealth was permitted to prove mere hearsay as substantive evidence of an alleged threat by the appellant against the deceased. Kennedy v. Com., 14 Bush 340; Loving v. Com., 80 Ky. 507; Helton v. Com., 202 Ky. 516, 260 S.W. 345; Harris v. Com., 226 Ky. 584, 11 S.W. (2d) 410; Duke v. Com., 191 Ky. 138, 229 S.W. 122; Saylor v. Com., 33 S.W. 185, 17 Ky. Law Rep. 959; Commonwealth v. Bright, 66 S.W. 604, 23 Ky. Law Rep. 1921; Bergman v. Solomon, 143 Ky. 581, 136 S.W. 1010.
The rule deducible from these cases is that a witness who fails to testify to substantive facts cannot be contradicted by asking him if he had not stated such facts to another person out of court, and then proving by such person that the witness had made the statements out of court. Such procedure transforms mere hearsay into substantive evidence.
Willie Miller, another witness in behalf of appellant, was permitted to be asked by the commonwealth, and required by the court to answer, if he had been anywhere with the wife of the appellant during the night before the killing. His answer was that he was not with her.
Linville Miller, a witness for the commonwealth, was asked and permitted to answer that, on the night before Dock Miller was...
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