Miller v. Commonwealth

• Decision Date: 12 October 1923
• Citation: 200 Ky. 435,255 S.W. 96
• Parties: MILLER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

255 S.W. 96

200 Ky. 435

MILLER v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 12, 1923

Appeal from Circuit Court, Breckinridge County.

Charles Miller was convicted of murder, and appeals. Affirmed.

Claude Mercer, of Hardinsburg, for appellant.

T. B McGregor, Atty. Gen., and Lilburn Phelps, Asst. Atty. Gen for the Commonwealth.

THOMAS J.

The appellant, Charles Miller, a colored man about 24 years of age, was indicted for and convicted in the Breckinridge circuit court of murdering Sam Haycraft and was given the death penalty. On his appeal to this court the judgment was reversed by an opinion reported in 197 Ky. 703, 247 S.W. 956, and in which the facts relating to the commission of the homicide are stated, and will not be repeated here. That opinion was rendered on February 13, 1923, and a second trial was had in the Breckinridge circuit court on May 31, thereafter, resulting in a similar verdict, upon which judgment was rendered, and which defendant seeks to reverse by this appeal.

Only two errors are argued and relied on for that purpose by his able counsel, which are: (1) The court erred in overruling defendant's motion for a continuance because of the absence of Dr. Milton H. Board and Aubrey Mopley, material witnesses in his behalf, and whose testimony, if present, was set out in the affidavit which the commonwealth agreed might be read as the depositions of the absent witnesses; and (2) that the verdict of the jury is flagrantly against the evidence on defndant's chief defense of insanity at the time the homicide was committed.

1. It was stated in the affidavits that the two witnesses resided in Louisville, Jefferson county, Ky. and that a subp na had issued for them "on the ______ day of May, 1923," and placed in the hands of the sheriff of that county, but he had not returned them. It is doubtful if sufficient diligence was shown by that statement, since the subp na could have been procured on the very day of trial and the statement in the affidavit be literally true, which, if correct, would be no diligence at all. Brown v. Commonwealth, 195 Ky. 166, 241 S.W. 846; Mohundro v. Commonwealth, 197 Ky. 221, 246 S.W. 448. But because of the gravity of the punishment we have concluded to treat the affidavit as sufficient and as completely measuring up to the requirements of the practice.

With reference to the witness Dr. Board, it was stated that "on the ______ day of ______, 1923,¤7D and while defendant was imprisoned at the penitentiary at Eddyville, Ky. to which place he was sent after his first trial, witness examined defendant and pronounced him insane, and that he had been so for more than five years, and that he did not have sufficient reason to know what he was doing, or to know right from wrong, because of his mental unsoundness. With reference to the witness Mopley, it was stated in the affidavit that he would swear that defendant was in Louisville on October 4, 1922 (the evening of which the homicide was committed), and remained in that city until something like 10 o'clock the next morning, October 5, which, if true, rendered it impossible for him to have committed the crime with which he is charged.

The trial was had at a term subsequent to the one at which the indictment was returned, and section 189 of the Criminal Code vests in the trial court a sound discretion in such cases as to whether the prosecution should be continued because of the absence of defendant's witness or witnesses, or whether a trial will be ordered if the prosecuting attorney agrees to admit the affidavit to be read as the testimony of the absent witness or witnesses. Under the latitude conferred by that section, we have uniformly held that, under the broad discretion therein given the trial court, a judgment of conviction will not be reversed for refusing a continuance unless from all the facts and circumstances of the case it manifestly appeared that defendant's substantial rights were prejudiced thereby (Brown v. Commonwealth, supra), an example of which might be where the testimony of the absent witness was directed to a most vitally material issue in the case and was the only testimony thereon. But where there was other testimony heard at the trial on that issue, and the absent testimony was only cumulative, and the jury got the benefit of it, as set out in defendant's affidavit, we have quite uniformly held that the court did not abuse its discretion, and that the verdict of conviction would not be disturbed. Some of the numerous cases so holding are Ross v. Commonwealth, 59 S.W. 28, 24 Ky. Law Rep. 1621; May v. Commonwealth, 153 Ky. 141, 154 S.W. 1074; Caudill v. Commonwealth, 155 Ky. 578, 159 S.W. 1149; Tyree v. Commonwealth, 160 Ky. 706, 170 S.W. 33; Adkins v. Commonwealth, 161 Ky. 254, 170 S.W. 607; Commonwealth v. Flynn, 161 Ky. 289, 170 S.W. 617, and Wallace v. Commonwealth, 187 Ky. 775, 220 S.W. 1051. Lay v. Commonwealth, 186 Ky. 163, 216 S.W. 123, is a case wherein it was held that the court abused its discretion in refusing a continuance because the testimony of the absent witness was not cumulative, but was the only evidence upon that issue, except that given by the defendant, and the absent witness had not only been subp naed, but was present at the time the trial was entered into, and...