Miller v. Commonwealth

• Court: Kentucky Court of Appeals
• Writing for the Court: WILLIS, J.
• Citation: Miller v. Commonwealth, 236 Ky. 448, 33 S.W.2d 590 (Ky. Ct. App. 1930)
• Decision Date: 09 December 1930
• Parties: MILLER v. COMMONWEALTH.

33 S.W.2d 590

236 Ky. 448

MILLER v. COMMONWEALTH.

Court of Appeals of Kentucky

December 9, 1930

Rehearing Denied Jan. 13, 1931.

Appeal from Circuit Court, Jefferson County, Criminal Division.

William Miller was convicted of murder, and he appeals.

Affirmed.

Frank R. Cahill, Jr., of Louisville, for appellant.

J. W Cammack, Atty. Gen., and James M. Gilbert, Asst. Atty. Gen for the Commonwealth.

WILLIS J.

William Miller was convicted of the crime of murder, and condemned to suffer the penalty of death by electrocution. He has prosecuted an appeal, assigning for reversal of the judgment several separate grounds, which will be discussed and disposed of in the course of the opinion.

Miller a colored man, came upon the premises of Mrs. Gertrude Neiderloh, a white woman, and shot her to death. He then shot and killed Henry Brummer, a colored man, who was engaged in some repair work on the premises of the woman. The conviction under review was for the murder of the man. Whilst Miller testified that Brummer was about to assault him with a rake, his real defense was insanity. There was testimony tending to show that Miller had been subject to epilepsy for thirty years or more, and that it had impaired his mind to such an extent as to render him irresponsible. There was other evidence to the effect that Miller was sufficiently sane to be responsible for his crimes, and some statements made by Miller indicated that his murderous conduct was prompted by motives of jealousy. It is sufficient to say that the case was submitted to the jury by appropriate instructions, and the evidence was ample to sustain the verdict.

The first ground of reversal urged is alleged misconduct on the part of the commonwealth's attorney. Two matters are mentioned, the first relating to some questions asked a witness, and the second to an argument addressed to the jury. When Miller was upon the witness stand in his own behalf, he was asked if he did not make certain statements in the presence of some named policemen. He denied making the statements. One of the policemen was later offered as a witness in rebuttal, and was asked if Miller had made the statements. The objection of the defendant was sustained upon grounds that appear to have been erroneous. Statements of a defendant are admissible in evidence as substantive proof, but properly should be introduced in chief. Bennett v. Commonwealth, 150 Ky. 604, 150 S.W. 806, 43 L. R. A. (N. S.) 419. C. F. Dalton v. Com., 226 Ky. 127, 10 S.W.2d 609. A defendant who testifies, however, may be asked as to statements contradictory of his testimony, for the purpose of impeaching him, and, if he denies making them, it is proper in rebuttal to prove the fact. The practice follows the Civil Code of Practice § 597, which is applied in the trial of criminal cases. Castle v. Commonwealth, 228 Ky. 151, 14 S.W.2d 387; Posey v. Commonwealth, 194 Ky. 483, 240 S.W. 91; Warrix v. Commonwealth, 195 Ky. 795, 243 S.W. 1025; Bentley v. Commonwealth, 200 Ky. 246, 254 S.W. 752; Thomas v. Commonwealth, 195 Ky. 623, 243 S.W. 1; Britton v. Commonwealth, 123 Ky. 411, 96 S.W. 556, 29 Ky. Law Rep. 857. It is apparent, therefore, that the commonwealth's attorney was within his rights in offering to prove in rebuttal statements of the defendant which tended to impeach his testimony at the trial. It was not improper to ask the question in the form that was employed, and the complaint of appellant in that respect was groundless. Moreover, his objection was sustained, and it is not open to an appellant to complain of rulings in his favor. Foster v. Commonwealth, 229 Ky. 262, 16 S.W.2d 1040; Epling v. Commonwealth, 233 Ky. 407, 25 S.W.2d 1022. Cf. L. & N. R. R. Co. v. Howser's Adm'r, 201 Ky. 548, 257 S.W. 1010, 36 A. L. R. 327, and In re Lamar, 229 Ky. 258, 16 S.W.2d 1045.

In his argument to the jury the commonwealth's attorney stated that in this state convicts do not serve over ten years until they are out on the community again. It is conceded that the argument was designed to induce the infliction of the death penalty as against a lesser punishment, and it is insisted that it was erroneous and prejudicial. In Bolin v. Commonwealth, 206 Ky. 608, 268 S.W. 306, a statement of the same type, but more forceful and elaborate, was considered, and held insufficient to warrant the reversal of a judgment of conviction. If the commonwealth's attorney considers a crime he is prosecuting so flagitious as to merit the death penalty, he has a right to argue from the record, and upon reason, in such manner as he deems most persuasive, in favor of the severest punishment authorized by the law. Lawler v. Commonwealth, 182 Ky. 185, 206 S.W. 306. In Moore v. Commonwealth, 223 Ky. 132, 3 S.W.2d 190, an argument almost identical was considered and a judgment of conviction was upheld. Cf. Crenshaw v. Commonwealth, 227 Ky. 223, 12 S.W.2d 336; Saylor v. Commonwealth, 235 Ky. 78, 29 S.W.2d 629. In Berry v. Commonwealth, 227 Ky. 528, 13 S.W.2d 521, statements made in an argument, with the court's approval, were deemed reversible error because of the peculiar circumstances, rendering the statements likely to prejudice the rights of the defendant; but the facts there present which made the argument prejudicial were not shown in the instant case. Cf. Cooksey v. Commonwealth, 235 Ky. 454, 31 S.W.2d 703.

It is stated in the brief that the verdict is contrary to the law and the evidence, and that the court erred in the instructions to the jury, but the statement is wholly without basis. No particular instruction to the jury is complained of, and there is no apparent basis for any complaint thereof. The verdict of the jury is supported by an abundance of evidence, and the appellant admits the commission of the crime, in the very manner detailed by the witnesses. But upon this branch of his argument, appellant's counsel insists that certain doctors, who testified concerning the characteristics and results of epilepsy, were entirely wrong, and gave testimony at variance with the medical authorities upon the subject. We are invited to search the books upon this question of fact, and, by a rejection of the medical testimony for the commonwealth, to find that the proof for appellant tending to show his insanity was uncontradicted. The question of defendant's sanity was an issue of fact to be determined by the jury from the evidence. It was competent for the defendant to prove by his experts that he was of unsound mind when the crime was committed. It was equally competent for the commonwealth to prove the reverse, if it could do so. Books of science are not admissible in evidence except to contradict or to impair the credibility of an expert who bases his opinion upon the particular authority. 1 Greenleaf on Evidence, § 440...