Nolan v. Commonwealth

• Decision Date: 22 November 1935
• Citation: 261 Ky. 384
• Parties: Nolan v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

Page 384

261 Ky. 384

Nolan v. Commonwealth.

Court of Appeals of Kentucky.

Decided November 22, 1935.

1. Homicide. — In murder prosecution, deceased's dying statement that "he was not doing anything" held admissible over objection that it was mere conclusion.

2. Homicide. — Dying declaration is competent only where it would be competent if given by living witness.

3. Witnesses. — Witnesses may not be cross-examined as to any fact which is collateral and irrelevant to issue merely for purpose of contradicting witness by other evidence and discrediting his testimony in event witness denies fact.

4. Witnesses. — In murder prosecution, admitting testimony that defendant's father, upon being arrested in defendant's absence, stated that neither he nor defendant was present at scene of shooting, for purpose of impeaching father's statement that he was present when defendant shot deceased and that defendant shot in self-defense, held not erroneous as relating to collateral issue, where material issue was whether defendant shot in self-defense.

5. Criminal Law. — Arrest of defendant's witness while witness was still in courtroom, for false swearing, held not error, where witness was not arrested until after jury had been sent to its room and jury had no knowledge of charge.

6. Criminal Law. — Statement of commonwealth's attorney in closing argument that deceased stated that "they shot me for nothing" held reversible error, where trial court had ruled statement inadmissible as mere conclusion.

Appeal from Jackson Circuit Court.

A.T.W. MANNING and L.C. LITTLE for appellant.

BAILEY P. WOOTTON, Attorney General, and WILLIAM A. SHUMATE, Jr., Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE PERRY.

Reversing.

On January 9, 1935, the grand jury of Jackson county returned an indictment against the appellant, Fred Nolan, charging him with the murder of Wash Hensley, and, on his trial thereunder, he was convicted of the crime of voluntary manslaughter and his punishment fixed at imprisonment for twenty-one years.

In the motion and grounds made for a new trial, some twelve assignments of error were made. Two of the alleged grounds therein recited are by defendant's counsel here expressly abandoned in brief, as being without merit. Some of the ten remaining grounds, by reason of their close connection and similarity, are argued together, thus presenting but six grounds now insisted upon for reversal, which are: (1 and 2) That the statement of the deceased made shortly before his death, "Boys, they killed me for nothing. I wasn't doing anything," etc., was incompetent and its admission as a dying declaration, over objection of defendant, highly prejudicial, as representing but the expression of opinion by the deceased, rather than the relation of any fact or circumstance connected with the cause and occurrence of the homicide; grounds 3 and 4 attack the alleged statement of defendant's father, made to the arresting officers, in the absence of the defendant, that he and the accused were not at Sand Gap, the place the tragedy occurred, as incompetent either as substantive or rebuttal testimony, and allege the court's error in permitting its introduction was not cured by the court's admonition to the jury, restricting its consideration of the father's testimony to only the one purpose of discrediting (if it did) his credibility as an adverse witness; (5) that the arrest and imprisonment during the trial of a witness for appellant on the charge of false swearing, whose testimony contradicted that of the commonwealth's main witness, was improper and highly prejudicial to appellant; and (6) that misconduct of the commonwealth's attorney in arguing before the jury certain parts of the testimony offered as a dying declaration, which were ruled out and excluded by the court as incompetent, was reversibly prejudicial to the appellant.

Before undertaking the discussion and disposition of these points, we will, for their clearer consideration, first give a brief summary of the facts and circumstances surrounding the admitted shooting and killing of the deceased, Wash Hensley, at Hensley's coal mine in Jackson county, by the appellant, Fred Nolan, on the late afternoon of November 9, 1934, while disputing over Hensley's selling price, per ton, of coal.

It is shown by the evidence that the appellant, Fred Nolan, together with his younger brother, Johnnie, and father, L.M. (Buddy) Nolan, came to the coal mine of the deceased shortly after dark upon this occasion for the purpose of buying a truck load of coal for resale; that appellant in the prosecution of his coal peddling business, it is disclosed, worked with or for his father, L.M. Nolan, whose truck he used in hauling and delivering to purchasers the coal as bought and resold by him. It further appears that on the evening of November 9, 1934, he drove to the deceased Hensley's mine, at Sand Gap, Jackson county, Ky., upon such a mission, accompanied by his father and brother, where, upon their arrival, he first inquired of some employees there as to what was their ton price of coal. One of them, E.G. Miller, replied $2.35 per ton, to which appellant answered that he could and had recently bought such coal at another nearby mine at $2.25 per ton, to which Miller replied that, as he might be mistaken as to the price, he would call the mine owner and manager, Mr. Hensley, to come and himself price the coal to him, which was done. Hensley, upon joining them at the coal pile, was asked the ton price of his coal, and answered $2.35; to which Nolan replied: "We will not take any. We will go to No. 3 mine and get coal for $2.25. We can get it down there for that."

Appellant testifies that Hensley became enraged by this statement and called him "a g.d. liar" and said that he couldn't buy coal there at that price. Appellant then told him that he had bought coal there the last week for $2.25, to which the deceased answered: "You are another g.d. liar. I will cut your g.d. head off," and grabbed at him with his left hand, while striking at him with a knife held in his right hand; that appellant dodged, drew his gun, and shot Hensley as he grabbed at him the second time, when "Hensley went down"; that he then turned and, with his father and brother, hurriedly crowded into the truck and left. Further he testifies that he fired only this one shot at Hensley, and that was done to save his life, when he was cutting at him with a knife.

E.G. Miller, the appellant, Fred Nolan, his father, L.M. Nolan, and younger brother, Johnny Nolan were the only ones, other than the deceased, present at the place and time this dispute over the price of coal arose and was had between the deceased and accused and the only eyewitnesses to the facts and circumstances of the appellant's admitted shooting and killing of Hensley, which then and there took place.

The appellant's brother and father, who at the time of the shooting stood only a few feet away, testify in corroboration of the appellant, that he was, when he shot Hensley, being attacked with a knife by him.

In denial and contradiction of this theory of appellant's defense, based upon such version of his shooting and killing Hensley, is the counter testimony of the prosecuting witness, Miller, who testifies that the deceased, Wash Hensley, was upon this occasion called by him from his home, down to the coal pile, for the purpose of telling the appellant the price of his coal, and that he, upon being asked this question by appellant, had answered it was worth $2.35 a ton, to which the appellant replied, "the old man had been getting it for $2.25 a ton;" that "a dispute then arose between them about the 10-cent difference per ton, in which one word brought on another; that they disputed one another's word about it, until Nolan shot Hensley"; that "Hensley, when shot, was standing, with his hands in his pockets, about eight feet away from Nolan"; that after shooting him, the Nolans never said a word, but "got into the truck as quickly as they could crowd into it, and left as fast as they could get the truck to go"; that he (the witness) didn't know who they were, nor did the Nolans give or tell "any names they claimed to go by." Miller further states that while the deceased was lying near the coal pile, where he had fallen when shot, he said "he was killed" and "to take good care of his children, and never expressed any hope of recovery."

The wife of the deceased, by way of also contradicting appellant's testimony, that Hensley was attacking him with a knife when he shot him, testifies that almost immediately after the shooting, she hurried to where her husband was lying wounded at the mine, but that she neither saw nor found any knife either on or near him.

The evidence for the commonwealth is further that soon after Hensley was shot, he was placed in a truck and carried to the Berea Hospital for medical attention, and that while on the way the witness Browning testifies that the deceased made the following dying statements to him and others there accompanying him: "Boys, they killed me for nothing. I wasn't doing anything." "That they had some little difference, and that the dispute was over a dime on the ton of coal." And again said: "Oh lordy, boys, I am...