Moore v. Commonwealth

• Decision Date: 14 February 1928
• Citation: 223 Ky. 128
• Parties: Moore v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

223 Ky. 128

Moore v. Commonwealth.

Court of Appeals of Kentucky. Criminal Branch.

Decided February 14, 1928.

1. Criminal Law. — Conviction for crime may be had on circumstantial evidence alone, but evidence must be of such character that it may not be reconciled with presumption of innocence of accused person, but must possess such force as to exclude every reasonable hypothesis of defendant's innocence.

2. Homicide. — In prosecution for murder, evidence held sufficient to require submission of case to jury.

3. Criminal Law. — Where, under evidence, clear case for jury to determine guilt or innocence of accused arises, appellate court has no authority to disturb verdict based on evidence of facts and circumstances which meet every demand of rule of law applicable to situation.

4. Criminal Law. — Trial court has broad discretion in applying rule respecting separation of witnesses under Civil Code of Practice, sec. 601, and appellate court will refuse to intervene, in absence of abuse of discretion.

5. Criminal Law. — In prosecution for murder, where assistant commonwealth's attorney stated in argument to jury that, "if this man is given a life term in a penitentiary, he will get out in a few years," and statement was objected to, and on objection being overruled, exception was taken, held that statement was not prejudicial to substantial rights of accused, and did not constitute reversible error.

6. Criminal Law. — All arguments by attorneys for commonwealth should be based upon evidence and deductions logically flowing therefrom, and they should not undertake to influence jury by extraneous matters or by appeals beyond limits defined by appellate court.

7. Criminal Law. — In prosecution for murder, where two of instructions were identical in substance, held that duplications did not constitute error, since right of accused was not prejudiced thereby, in view of Criminal Code of Practice, sec. 340, providing that judgment of conviction shall not be reversed for any error of law appearing on record, when, on consideration of whole case, court is satisfied that substantial rights of defendant have not been prejudiced thereby.

8. Criminal Law. — Jury, and not appellate court, is provided by Constitution for determination of questions of guilt or innocence under proper instructions and competent evidence.

9. Criminal Law. — Function of appellate court in determining guilt or innocence of accused is limited to ascertainment from record of whether there is any evidence from which, if believed, jury could find verdict of guilty under law as defined in instructions of court.

10. Criminal Law. — Under Criminal Code of Practice, sec. 282, providing for manner in which bill of exceptions shall be prepared, errors complained of in motion for new trial are not reviewable in appellate court, in absence of exception taken and shown by bill of exceptions.

Appeal from Jefferson Circuit Court.

S.L. GREENBAUM and L.D. GREENE for appellant.

J.W. CAMMACK, Attorney General, and JAMES M. GILBERT, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE WILLIS.

Affirming.

Anna Eslick, a colored woman, lived in a rooming house at 657 South Twelfth street, Louisville, Ky. On December 8, 1926, her lifeless body was found locked in her room. The only means of access was through a window. A broken beer bottle with a jagged end was found upon the floor of the room. The woman's body was still warm, the right side of her face was badly cut, the right eye destroyed, the nose broken, the skull fractured, and many cuts and bruises on the forearms. The room and contents were spattered with blood and brains. Death had been caused by the fractured skull and crushed condition of the head, caused by heavy blows with the beer bottle, or some such weapon. Other roomers in the house heard a thumping sound in the room where the crime was committed, and also heard the victim's vain cry: "Don't let him kill me — open the door!" It was then dark, and shortly thereafter the woman was found in the bloody and mutilated condition just described. It was plain that a crime had been committed, and the police were called, and arrived upon the scene in a few minutes.

The appellant, William Moore, was arrested about 11:30 p.m., and accused of the crime. He was later indicted, tried, and convicted of the willful murder of the woman, and a sentence of death pronounced upon him. He has appealed to this court and insists that the lower court erred: (1) In denying a peremptory instruction to the jury to find him not guilty; (2) in rejecting competent evidence offered by him, and in admitting incompetent evidence on behalf of the commonwealth; (3) in permitting improper conduct by the commonwealth's attorney during the progress of the trial and in the closing argument to the jury; (4) in failing to instruct the jury on the whole law of the case; (5) in refusing to vacate the verdict as contrary to the law and the evidence; and (6) in the refusal to discharge the jury on motion for the defendant. We shall consider these complaints in the order stated.

It is urged that the evidence, being circumstantial, was insufficient to warrant the court in submitting the case to the jury, or to justify the conviction, for the reason that the evidence is as consistent with defendant's innocence as it is with his guilt. It is the rule in this state that a conviction for crime may be had upon circumstantial evidence alone, but the evidence must be of such character that it may not be reconciled with the presumption of innocence that attends every accused person, and must possess such force as to exclude every reasonable hypothesis of the defendant's innocence. Mullins v. Commonwealth, 196 Ky. 687, 245 S.W. 285; Wendling v. Commonwealth, 143 Ky. 587, 137 S.W. 205; Mitchell v. Commonwealth, 217 Ky. 155, 289 S.W. 208; Daniels v. Commonwealth, 194 Ky. 513, 240 S.W. 67; Johnson v. Commonwealth, 217 Ky. 705, 290 S.W. 693; Hill v. Commonwealth, 191 Ky. 477, 230 S.W. 910; Denton v. Commonwealth, 188 Ky. 30, 221 S.W. 202.

It is therefore necessary to examine the evidence in this case to ascertain whether or not it measures up to the requirements of the legal test.

Monroe Weston testified that he lived in the same building where the crime was committed, and, after supper, as he was leaving the place, he went through the room of Anna Eslick, and paid her 50 cents which he had previously borrowed from her. He found the appellant, William Moore, in the room, engaged in an angry argument with Anna Eslick. The witness said that appellant was in the habit of visiting Anna Eslick almost every day and Sunday, too. At the time Weston saw Moore with the deceased the door to the room was unlocked, and partly open, and, as Weston approached, the argument was suspended, but, as he left, it started again. He walked a short distance to a store where he purchased a few articles, and in a few minutes heard the police coming to the scene of the crime. He returned, and found Anna Eslick's room occupied by the police, and Anna Eslick dead. Weston testified that the appellant had on a gray coat when he saw him with the deceased. When arrested, he did not have on the gray coat, but it was found hanging on the wall at his home. Appellant said he had not worn the gray coat for some time. The pocket contained a street car transfer bearing the date of December 8th, and showing it had been obtained about 4:45 p.m. that day. Blood was found upon the gloves, shoes, coat, shirt and hat of the appellant. An effort had been made to wash the blood from the coat, shoes, shirt, and perhaps from some other articles.

The blood spots on all these articles were damp, and the washed articles were still wet. Appellant first denied to the officers that the spots were of blood, but a moment later referred to some chickens and a rabbit as the possible source of the stains. He ran when he first saw the police, and, when apprehended, he requested some one to tell his wife that they had got him for that, and, when asked for what, he declined to say.

We are of the opinion that the evidence for the commonwealth was of the character, quality, and quantum calculated to induce belief beyond a reasonable doubt that the appellant was the murderer of the unfortunate woman. O'Brien v. Commonwealth, 89 Ky. 354, 12 S.W. 471, 11 Ky. Law Rep. 534.

Appellant apparently thought so himself, for he went upon the witness stand, and either denied or explained as best he could all the damaging facts and circumstances that had been adduced against him.

He testified he was not at Anna Eslick's room on that fatal day, but on the day before; that he did not deny there was blood on his clothing, or attribute it to animals, but testified that the blood came from his hands, nose, and a mashed finger; that his message to his wife after he was arrested referred to some trival matter, and he did not then know he had been picked up on a murder charge. He claimed he was working on his automobile that evening, and, after the work was finished, he attended a show at the Lincoln Theatre. Aside from his own testimony, appellant introduced only one witness, a colored preacher, of limited opportunity to know, but who testified that the appellant was a peaceable citizen and of good reputation.

In rebuttal, the commonwealth offered evidence contradictory of appellant's testimony regarding his bleeding hands.

The evidence made a clear case for the jury to determine the guilt or innocence of appellant, and we have no authority to disturb a verdict based upon evidence of facts and circumstances which meet every demand of the rule of law applicable to the situation.

Appellant complained in his motion and grounds for a new trial of the rejection of competent evidence offered by him, but in his brief he fails...