Morgan v. Commonwealth

• Decision Date: 22 January 1932
• Citation: 242 Ky. 116
• Parties: Morgan v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

Page 116

242 Ky. 116

Morgan v. Commonwealth.

Court of Appeals of Kentucky.

Decided January 22, 1932.

1. Criminal Law. — Where defendant denies facts constituting offense, general instructions under not guilty plea are sufficient.

2. Criminal Law. — Where defendant admits facts constituting offense, but interposes legal excuse therefor, exonerating him from criminal intent, instructions should submit excuse to jury in concrete form.

3. Criminal Law. — Whole law of case should be submitted to jury.

4. Perjury. — Where defendant, charged with committing perjury before grand jury, admitted testimony was false, but testified he then believed it to be true, refusing concrete instruction submitting defendant's excuses held error.

It was error to refuse to instruct, in appropriately drafted instructions, that if defendant, in good faith, believed excuses interposed by him, he should be acquitted, or if jury believed one of them, jury should not convict him on that particular charge, where defendant having admitted that he testified before grand jury that he had not been drunk within previous 12 months, nor convicted for drunkenness, and having admitted further his apparent intoxicated condition and that he actually was fined for drunkenness, but now stated in excuse that apparent intoxicated condition was result of asthma plus effect of overdose of aspirin tablets, and further that when he gave false testimony he believed he had not been convicted for drunkenness, but some other offense with which he was then charged.

5. Perjury. — Conviction for committing perjury before grand jury held not flagrantly against evidence.

6. Criminal Law. — Alleged misconduct of commonwealth's attorney held not available on appeal, where language employed in closing argument was not incorporated in bill of exceptions nor otherwise manifested to appellate court under any approved rule of practice.

First appearance of language allegedly employed by commonwealth's attorney was in motion for new trial, and second appearance was in brief of counsel, neither of which was sufficient to present question to appellate court for determination.

7. Criminal Law. — In prosecution for perjury before grand jury, argument of commonwealth's attorney that, if jury acquitted defendant, they would have to disbelieve commonwealth's witnesses and court record, held legitimate under circumstances.

It was legitimate and not improper for prosecuting attorney to argue that, if jury found defendant not guilty, they would have to disbelieve the two arresting officers, the police judge, and the court's records, "four good witnesses," where it appeared that defendant was charged with having falsely testified before grand jury that he had not been drunk within year before such testimony and had not been convicted in police court of drunkenness; commonwealth's testimony supporting such charge.

Appeal from Barren Circuit Court.

TERRY L. HATCHETT, B.G. ELLIS, and PAUL GREER for appellant.

BAILEY P. WOOTTON, Attorney General, and H. HAMILTON RICE, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE THOMAS.

Reversing.

At his trial on an indictment charging him with perjury, appellant, Robert Morgan, was convicted in the Barren circuit court and punished by confinement in the penitentiary for one year. From the order of the court overruling his motion for a new trial, and from the judgment pronounced thereon, he prosecutes this appeal, relying through counsel upon four grounds for a reversal of the judgment, which are: (1) Error of the court in not instructing the jury on the whole law of the case; (2) error in permitting a juror, who had been accepted by both the commonwealth and defendant, to retire from the panel after the jury was sworn and his place substituted by another; (3) that the verdict is flagrantly against the evidence, and (4) improper remarks of prosecuting attorney in his argument to the jury.

Discussing them in the order named, we have concluded that ground 1 is well taken for reasons that we will now proceed to state. The alleged false testimony was given by appellant and defendant below while testifying before the grand jury of Barren county in its investigation of violations of our state prohibition statute, commonly known as the "Rash-Gullian" Act (Acts 1922, c. 33). He testified before that tribunal, among other things, that he had not been drunk in Barren county within the previous twelve months, nor had he within that time been convicted for being drunk in violation of the statute. He admitted at his trial that he so testified before the grand jury and that his testimony that he had not been fined in the police court of Glasgow for being drunk within twelve months before testifying was false, but that he did not act feloniously, willfully, or knowingly in so testifying. He also at his trial admitted his apparent intoxicated condition on the occasion testified to by the prosecuting witnesses, which occurred within twelve months prior to his testimony before the grand jury, but he contended that such condition was not the result of intoxication from drinking alcohol or other intoxicating liquors, but that it was due to a spasm of asthma to which attacks he was subject, plus the effects of an overdose of aspirin tablets that he took to relieve the asthma attack, and that the affliction, with the remedy he had taken therefor, produced his apparent intoxicated condition.

In explaining why his statement before the grand jury that he had not been fined in the police court of Glasgow on a charge of being drunk was made by him as charged in the indictment, though false, he testified at his trial that some months before his citation before the same court on a warrant for drunkenness, but of which named offense he was ignorant, there was a charge preferred against him in that court growing out of a personal encounter he had with another in his restaurant; that after the occasion of his apparent intoxication, and for which a warrant had been issued from that court accusing him of unlawful drunkenness, he was informed by the chief of police of Glasgow that the judge of the police court was going to dispose of the prosecution pending against him, and that he thereupon appeared in that court, and pleaded guilty, followed by the...