Morgan v. Commonwealth

• Decision Date: 08 February 1935
• Citation: 257 Ky. 691
• Parties: Morgan v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

257 Ky. 691

Morgan v. Commonwealth.

Court of Appeals of Kentucky.

Decided February 8, 1935.

1. Homicide. — In prosecution for murder of girl wherein defense was that accused fired at girl's father in order to protect his wife from impending danger, refusal to permit jury to view scene of shooting in order to clear up conflicting evidence that accused placed pistol in forks of locust tree, which accused claimed was not forked, held not error, since evidence to be cleared up was not substantive in its nature (Criminal Code of Practice, sec. 236).

2. Criminal Law. — Alleged error in that accused was not present during part of time jury was being selected held not reviewable, where no showing was made in bill of exceptions of procedure whereby such contention was first made by affidavits in support of motion for new trial.

3. Homicide. — In prosecution for murder of girl killed during quarrel between families, testimony that son of accused called for cartridges at store after the shooting held incompetent.

4. Criminal Law. — In prosecution for murder of girl killed during quarrel between families who lived on opposite sides of river, trial court's admonition to jury not to consider statement of defense witness about standing in yard of father of girl and seeing down to ford held not error because taking from jury testimony of witness that one standing in yard could not see locust tree from forks of which it was claimed accused fired pistol.

5. Criminal Law; Witnesses. — In prosecution for murder, testimony relative to payment of money to state's witness for his refusal to testify held competent to show his interest, but incompetent to show why he refused to talk to attorney for accused, where no such issue was raised.

6. Homicide. — In prosecution for murder of girl killed during quarrel between families, wherein evidence showed that accused shot deliberately and directly at girl's father with no intention to kill girl, granting instruction relative to reckless use of deadly weapon held reversible error because confusing jury and submitting issue not warranted by evidence.

Appeal from Leslie Circuit Court.

W.H. LEWIS and WILLIAM LEWIS for appellant.

BAILEY P. WOOTTON, Attorney General, and RAY L. MURPHY, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY MORRIS, COMMISSIONER.

Reversing.

George Morgan, appellant, and wife, Emma Morgan, were jointly indicted by the Leslie county grand jury on March 25, 1934, on a charge of murder. Morgan was charged with having fired the shot which killed Dorothy Dixon, and his wife as having been accessory. They were tried together and were found guilty of voluntary manslaughter, and punishment was fixed at confinement in the penitentiary for thirteen years.

A motion for new trial was sustained as to Emma Morgan, but overruled as to George Morgan. Judgment was entered upon the verdict, and George Morgan appeals. A discussion of the errors claimed to have been committed on the trial requires a brief statement of the facts.

George Morgan and wife, with three or four children, lived on one side of and close by Middle Fork river, near the mouth of Short creek. Joe Dixon with his wife, Laura, and several children lived on the opposite side of the river, about 150 or 200 yards below the Morgan home. It is apparent from the evidence that prior to the killing of Dorothy Dixon, the eight year old daughter of Joe and Laura Dixon, the two families had been on unfriendly terms. On the day Dorothy was killed, her father with several of his boys went over on the Morgan side of the river. The boys had been getting bait and it was their intention to set out a trot line. While there a controversy arose between Joe Dixon and Laura Morgan. A good deal of abusive and insulting language was used and it is claimed that Dixon had whipped one of Morgan's boys; it was also claimed that Dixon was threatening to shoot Mrs. Morgan. However, before Morgan appeared on the scene, Joe, saying he did not want trouble with the Morgans, waded back to his side of the river. But the passage of words continued and Mrs. Morgan, claiming she feared serious results, went toward her home calling for her husband, who was in the garden.

The commonwealth's witnesses, chiefly members of the Dixon family, claim that as George Morgan arrived on the scene his wife handed him a pistol which she was carrying concealed under her apron; that Morgan stepped back a short distance, placed the pistol in the forks of a locust tree and fired one shot, and then ran back toward his house. The shot thus fired, as claimed, missed Joe Dixon and struck the little girl, who was a few feet away from her father. She was shot in the abdomen and lived about two months after the 19th of August, 1932, the day of the shooting. The proof showed that she died as a result of the bullet wound. It is claimed by the Dixons that at the time of the shooting they were doing nothing at all which would justify Morgan in firing the shot at Dixon.

On the other hand, the proof for the appellant is that Joe Dixon had been very abusive to Emma Morgan directly before the fatal shot; that Joe had whipped one of his boys; that after his wife called out to him and he appeared on the scene he found Dixon still cursing her, flourishing a pistol, and threatening to kill her. He says that he shot at Joe in order to keep him from killing his wife, and that he did not see the girl at the time. The evidence is conflicting, the members of the respective families not agreeing as to what happened just prior to and at the time of the shooting. There is some testimony that Emma Morgan, prior to the firing of the shot by her husband, sent one of her children to the store for cartridges, and that after he had shot at Dixon she urged him to kill all of them.

Cook Morgan, who says he was related to both George and Emma Morgan, testified for the commonwealth. He says he was on the side of the river where Joe Dixon and his wife and children were at the time the shot was fired, and says that Joe and Emma were indulging in some very uncomplimentary remarks about each other; that Joe said he did not want any trouble and came back on his side of the river. He did not see the pistol fired, but heard the report. He said he could not see the little girl at the time of the shot, but heard her cry out and went to her and gave first aid.

Appellant contends that the court erred in overruling his motion to have the jury sent to the scene of the shooting for a view of the premises and surroundings. He insists that the court abused his discretion in so refusing, because of the sharp conflict in the testimony of the various witnesses; the witnesses for the commonwealth contending that Morgan placed the pistol in the forks of a locust tree and fired the shot; Morgan and his witnesses asserting the contrary.

Counsel contends that while there was a locust tree near where Morgan was standing when he fired the shot, it had no fork in it, and also insists that none of the Dixon family could see Morgan or the tree at the time the shot was fired. As Morgan insists he fired at Dixon in order to protect his wife from what he believed was impending danger, the jury by its...