Nichols v. Commonwealth
| Decision Date | 09 December 1875 |
| Citation | 74 Ky. 575 |
| Parties | Nichols v. Commonwealth. |
| Court | Kentucky Court of Appeals |
APPEAL FROM BOYLE CIRCUIT COURT.
COPYRIGHT MATERIAL OMITTED
R. J. BRECKINRIDGE, THOMPSON & THOMPSON, For Appellant.
THOS. E. Moss, Attorney General, For Appellee.
JUDGE COFER DELIVERED THE OPINION OF THE COURT.
Having been sentenced to be hanged for the murder of William Peach, the appellant has appealed to this court to obtain a reversal of that judgment.
The grounds relied on will be noticed in the order in which they are presented in the brief of the appellant's counsel.
The appellant filed an affidavit and moved to continue the prosecution on account of the absence of P. B. Thompson, jr., and Dr. T. T. Smith, alleged to be important witnesses for him.
He stated that he could prove by the former that just previous to the difficulty, and within three quarters of a mile of the place where it occurred, he saw the prisoner and the deceased together on their road home; that at said time there was no unfriendly feeling, or exhibition of unfriendly feeling, or any act of hostility or ill-will manifested by defendant toward the deceased, and that at that time he was in the act of getting up behind the deceased on deceased's horse for the purpose of riding home.
He also stated that Smith was a physician, and had made an examination of the wound on the person of the deceased, and would prove that the ball struck in the cheek and ranged downward, and that this evidence would be important in connection with other evidence in the case.
The attorney for the commonwealth resisted the motion for a continuance, and offered to admit that the statements of the affidavit as to what those witnesses would prove were true, and thereupon the court overruled the motion for a continuance.
Counsel concede that this court has no power to reverse the judgment for error in overruling the motion for a continuance, but they insist that the prisoner had a right to the presence of his witnesses before the jury, and that the court, by compelling him to try without them, is to be taken as having refused to admit important evidence in his favor.
We do not feel authorized thus, by what seems to us to be a strained construction, to hold that the effect of the ruling of the court was to reject important evidence, so that we may thereby acquire jurisdiction in effect to reverse for error in overruling a motion for a continuance, even if we could see that error had been committed. But if we could concur with counsel and take jurisdiction to look into the action of the court on this point, we perceive no error.
As long as facts are disputed the presence of the witness relied upon to prove them is often important, because from his appearance, his deportment, and his manner of testifying, and from having an opportunity to judge of his intelligence, the jury will be much better able to fix a proper estimate upon his testimony. But when the facts to which an absent witness will swear are admitted by the adverse party to be absolutely true, then the presence of the witness is wholly unnecessary. His testimony delivered ore tenus could not possibly do more than establish the absolute truth of his statements.
After the jury had been sworn and some progress made with the trial the prisoner filed a second affidavit and moved to discharge the jury and continue the case.
He stated that two of his witnesses who were present at the commencement of the trial were then absent, and were sick and unable to attend. The facts to which he said they would swear were material. The court decided to proceed with the trial, but announced that if the witnesses could not be obtained the motion to continue the case would be acted on when that fact was ascertained.
The witnesses were subsequently brought into court, and one of them testified, and the other, upon being brought in, said she had been sick in bed for a week and was unable to be examined as a witness on that day. The court directed the examination to proceed, and said that if she showed herself unable to go on he would give time, whereupon counsel for the prisoner said they could only prove by her the same facts which had been proven by the other witness named in the affidavit who had already been examined, and declined to go on with the examination.
If this were error we have no power to reverse on that ground. The witness was the step-daughter of the prisoner; the circuit judge saw her, and must have believed she was able to testify, or he would have suspended the trial until she was better, or have continued the cause. Counsel did not make an effort to go on with the examination, nor did they ask for time, and we do not perceive that the court committed any error on this point.
A witness, who saw the prisoner on the morning and perhaps on the afternoon of the day on which the homicide was committed, stated that he was then drunk, and said he could give his reasons for thinking he was drunk if it was desired. The attorney for the commonwealth objected to his doing so, and the court sustained the objection, and the prisoner excepted.
It does not appear what reasons the witness would have assigned for his opinion, and we can not say that the prisoner was prejudiced by the ruling of the court. It could only be available here upon its being made to appear what reasons it was expected the witness would give, and then it would be necessary that it should further appear not only that the reasons on which the opinion was based were competent evidence, but it should also appear that the evidence was important. (Subsec. 1, sec. 334, Criminal Code.) While those who see a man may differ in their judgment as to whether he is drunk or not, this is a subject upon which it is competent for a witness to give his opinion to the jury without giving any fact upon which that opinion is based. The witness had, at the prisoner's instance, stated that he was drunk, and unless we knew from the statement of his counsel, made to the court at the time, what reasons it was expected the witness would give, we can not say he has been prejudiced.
The commonwealth was permitted, notwithstanding the objections of the prisoner's counsel, to prove that on the day of the homicide, and previous to the time when Thompson saw him on his road home, he had a pistol on his person, and was also allowed to prove threats against the deceased made prior to the day of the killing.
These facts were admissible for the double purpose of proving malice and to identify the prisoner as the person who killed the deceased, unless, as counsel contend, they were inconsistent with the facts which it was admitted P. B. Thompson would prove.
The prisoner did not admit the killing. He had not only denied it by his plea, but had, by his words and acts appearing in the evidence, imputed it to some unknown person. He was with the deceased when he was shot, and the only persons who saw the shooting done were the two sons of the deceased, the eldest of whom was nineteen years of age. The deceased having been shot, evidence that the prisoner had a pistol on his person on that day tended to support the evidence offered to prove that he did the shooting by showing that he had on his person a weapon capable of inflicting the wound, and evidence that he had previously threatened the...
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