Napier v. Commonwealth

• Decision Date: 11 May 1937
• Citation: 268 Ky. 482,105 S.W.2d 594
• Parties: NAPIER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

105 S.W.2d 594

268 Ky. 482

NAPIER v. COMMONWEALTH.

Court of Appeals of Kentucky

May 11, 1937

Appeal from Circuit Court, Knott County.

Beckham Napier was convicted of murder, and he appeals.

Reversed.

D Hollender Hall and J. C. Burnette, both of Hindman, for appellant.

B. M Vincent, Atty. Gen., and W. Owen Keller, Asst. Atty. Gen for the Commonwealth.

BAIRD Justice.

Beckham Napier was indicted, tried, and convicted in the Knott circuit court on the 26th day of August, 1936, for the willful murder of Andrew Patrick, and his punishment fixed at death.He appeals from that judgment.

First, it is insisted that the court committed an error in forcing him to trial on the 28th day of August, 1936, which was but four days after the indictment was returned against him.Second, that he did not get a fair trial, because one of the jurors that tried him had formed and had a fixed opinion as to his guilt or innocence sufficient to disqualify him.Third, the same juror was charged with being related to the deceased, which would disqualify him as a juror.Fourth, the Commonwealth's attorney and the attorney for the prosecution were guilty of such misconduct in their argument that the defendant did not get a fair and impartial trial.

We find it unnecessary to consider either of the grounds, except the last one referred to, as we have concluded the case will have to be reversed, by reason of the misconduct of the Commonwealth's attorney, in his argument to the jury.The other alleged errors may never be made on another trial; therefore, it is useless and a waste of time to consider either of them.

This homicide occurred in Knott county, Ky. on what is known as the Big branch of Ball's fork, on the 23d day of July, 1936.The deceased and the appellant knew each other well and lived within a mile and a half of each other.On the morning of the 23d day of July, 1936, the evidence is to the, effect that Andrew Patrick was at his home and on account of the feeble condition of his wife was washing dishes in the kitchen, when appellant came to his front gate and asked the wife of the deceased if her husband was at home and whether he could see him.She at once called her husband and he left his dishwashing and went out of the gate where Napier was; Napier at the time was under the influence of intoxicants; had a bottle in his pocket.It was about 5 or 6 o'clock in the evening.The wife of the deceased was sitting in a swing in the yard.Her son was sitting on the baluster of the porch.When appellant asked where the deceased was, the wife told him he was in the kitchen washing dishes.He said: "Tell him to come out, I want to see him."When her husband came out, he invited Napier to come in, but Napier's answer was: "No, I want to see you."They then together walked across the branch close to the house.Napier then pulled his pistol from his pocket, shot Patrick in the breast; he(Patrick) staggered back and Napier shot him twice more.They were in 40 or 50 yards of the house when the shooting occurred; in fair view to the wife and son of the deceased.When Andrew Patrick left the house, he had no gun, "not even a pocket knife"; he was walking a little behind Napier; they were talking.It was not known what was said.Lillian Patrick, the deceased's wife, who saw the shooting, went to her husband after he had fallen.When she arrived, he was dead, and never moved after he struck the ground.She saw Napier with a pistol in his hand, standing close by the body.Napier then walked away slowly and left.There were three shots fired.Her husband was shot three times.On the trial the clothing was exhibited, showing where the bullets entered his body.No one witnessed the shooting except Lillian Patrick and her son, Charlie Patrick.It was further in evidence by the witness, Ishmael Brewer, a boy about fourteen years of age, that a short time before the shooting, about 4:30 or 5 o'clock in the evening of the same day, he saw Napier, who was on his way toward the home of the deceased, Patrick.He stopped at the home of Monroe Wootens, about a mile from the home of Andrew Patrick; had a talk with Wootens; heard Napier say he would not be there long, but did not hear him call the name of Patrick.He looked at the witness when he said he would not be there long.At the time Napier was drunk.He had a pistol and a half pint of liquor in his pocket.No one was present except himself and Wootens.

He had not been there long, not over five minutes, when Napier came to Wootens.He had known Napier for some time.Napier at the time was cursing and "acting like a drunken man."Charlie Patrick, the son of the deceased, stated in substance that he saw Napier when he shot and killed his father; heard him ask his father to come out and heard him tell his father that he wanted to see him a minute; saw the deceased walk down across the branch, following Napier, talking to him, but he could not hear what they said; saw Napier shoot his father three times.When he did so, his father was doing nothing except walking along behind him.His father had no weapon of any kind.Napier had his pistol in his right pocket, but he did not know what kind of pistol it was, "except it was blue."As soon as his father was shot, he at once went after Princess Short and Grover Patrick.No one saw the shooting except his mother and himself; that he saw his clothes searched; there were not any weapons on his father's person, nor did he have any.On cross-examination, he said he saw Nancy Prater search his father and found nothing except some tobacco.At the time his father was shot, his hands were down by his side.He made no effort to get a knife, "or to do anything."Lawrence Patrick stated that on the evening of the day Andrew Patrick was killed, Napier went down by his house and stopped at his place, called him out to the gate, made inquiry of him if he knew where Andrew Patrick was; told him at the time that he was going to kill him.After telling him that, he went on down toward the branch where Andrew Patrick lived.He had a pistol on him and a bottle.He also mentioned a man by the name of Joe Daniels.When he inquired of him where Andrew Patrick was, he told him he was not at home.Napier then said he had been robbed.In a short time after Napier passed his house, he learned of the killing of Andrew Patrick; went to him and found him "over in the bottom" about 45 or 50 yards from his home.His body was in plain view of the house where Andrew Patrick lived and where Lillian Patrick and her son were at the time of the killing.Henry Amburgy stated that on the evening before Andrew Patrick was killed, he was at his home chopping up stove wood when Napier came to his house.He asked him if he had seen Andrew Patrick and Joe Daniels, told him that they took from him $18.60; that "one of us is going to separate from Big Branch"; no one was present at the time, except Napier and himself.He had known Napier for three or four years.There was other evidence offered by the Commonwealth that is not important to be related.

Beckham Napier, in his own behalf, admitted the killing; claimed that it was done in self-defense; claimed that some time before the killing Andrew Patrick, together with Joe Daniels, about 400 or 500 yards from his home, and before daylight, when he was going to his job, robbed him and took from him $17.50; that his purpose on this occasion in inquiring for him, as he left his home and passed the homes of the witnesses that testified against him, was to find out whether Patrick was at home, so he could have him arrested; that he had left his home that morning and was going to his father's to borrow a mule to go to town to get a warrant for Patrick for robbing him.He had to pass the home of the deceased.There was no other way to go.He stopped at Monroe Wootens' because he saw a man that he thought was Andrew Patrick, but it turned out not to be; denied having any conversation with Wootens in the presence or hearing of Ishmael Brewer; denied that he asked Wootens if Andrew Patrick was in his house; that he then went to one Lawrence Patrick, denied having any conversation with him, and denied having any conversation with Grover Patrick or any one else; stated that when he went to Andrew Patrick's home he was coming out of his gate; at that time he was two or three steps in front of the gate and Andrew Patrick asked him where he was going and he told him he was "going to his Dad's"; had not told any one up to that time, except his wife, that he had been robbed.When he passed the house of Andrew Patrick, Patrick asked him if he thought he got his money.In answer he told him: "I know you got it."Also, told him that "if he would give him as much as $10.00 back, he would not tell it."Andrew Patrick told him he would give him nothing and then snapped his pistol three times at him before he shot; stated that he shot Patrick three times and shot him after he fell down on the ground when he had his pistol by his side.He then went away.The testimony of Napier as to what occurred at the killing was all of his evidence as to what occurred there.There was other evidence tending to show that the deceased had a gun at his home, which amounted to but little.When giving his testimony on cross-examination, he used profanity a number of times and acted in such a way and manner before the jury that showed that he was a bad man and cared very little as to what the consequences might be.

After reading the evidence carefully in the case, we have come to the conclusion that appellant was not in any respect justified in...