Patterson v. Commonwealth
| Decision Date | 23 November 1887 |
| Parties | Patterson v. Commonwealth. |
| Court | Kentucky Court of Appeals |
APPEAL FROM JEFFERSON CIRCUIT COURT.
COPYRIGHT MATERIAL OMITTED
MATT O'DOHERTY, T. L. MARTIN AND N. R. HARPER FOR APPELLANT.
P. W. HARDIN AND AARON KOHN FOR APPELLEE.
Appellant having been indicted jointly with Albert Turner, though tried separately, for the murder of Jennie Bowman, and by the verdict of the jury found guilty and his punishment fixed at death, prosecutes his appeal.
It has been often decided that this court has no power to reverse a judgment of conviction in a criminal prosecution upon the ground the evidence is not sufficient to support the verdict. But as provided in section 344, Criminal Code, "a judgment of conviction shall be reversed for any error of law appearing on the record, when, upon consideration of the whole case, the court is satisfied the substantial rights of the defendant have been prejudiced." We will therefore, refer to the evidence no more in detail than is necessary to determine whether it tends to establish the guilt of the accused, and whether he was tried and convicted according to law.
The crime with which he is charged was, as appears from the evidence, committed between the hours of nine and ten o'clock of the forenoon, in the dwelling house of A. Y. Johnson, situated in a populous part of the city of Louisville. The statements of the deceased made, after she was injured, and, without objection, admitted in evidence as her dying declarations, and other circumstances, proved on trial, make it clear that the deed was done by two men. But no one but Albert Turner, who had been tried for the offense, and pleading guilty, convicted, testified directly that Patterson, the accused, was one of them, though there was other evidence, some of which will be hereafter referred to, tending to corroborate his testimony.
In behalf of the accused several witnesses testified to his presence in another and distant part of the city at or about the time, as proved by others, the crime was committed. But it was the exclusive province of the jury to decide as to their credibility, as of all witnesses in the case, and also, whether, giving full credence to their capacity to recollect and disposition to truthfully testify in regard to the precise times and places they saw him, it was still impossible for him to have been at the house of Johnson when the crime was committed.
We will now consider the alleged errors of law:
1. It is contended the record fails to show the accused was legally indicted; and the two sections, it is argued, were violated or disregarded, are as follows:
The record on the subject is as follows: "This day the foreman of the grand jury reported an indictment a true bill against Albert Turner and William Patterson for wilful murder, and previous convictions, which said indictment is as follows, etc."
By his failure to either demur to the indictment or move to set it aside for the causes now relied on for reversal, both of which steps are authorized by the Code to be taken in the lower court, the accused has waived his right to make the objections in this court. But we think the two sections were substantially complied with. For it is expressly stated the indictment was indorsed a true bill, and it also sufficiently appears to have been signed by the foreman. The objection that it was "reported," instead of being, in the exact language of the Code, "presented," is a mere play upon words commonly understood when used in that connection to mean practically the same thing.
2. Following the provisions for impanelling and swearing the jury to try the issue in a criminal prosecution, is section 219, as follows: "The clerk or Commonwealth's attorney shall then read to the jury the indictment and state the defendant's plea."
The record is as follows: "The defendant, William Patterson, is this day brought into court, . . . and came parties by counsel, and the said defendant having heretofore pleaded not guilty of the offense charged in the indictment, for his trial puts himself upon his country, and the attorney for the Commonwealth likewise."
Though it is not in terms recited in the record that either the indictment was read or the defendant's plea stated to the jury, it does appear that an issue was formed, and for the trial of it the defendant puts himself upon the country, the jury in legal parlance being the country and the attorney for the Commonwealth likewise." And, as the proceeding thus recorded by the clerk can be properly done only in presence of the jury, it is at least a fair, if not necessary, inference, and such as the record authorizes, that all that was necessary to be done to inform the jury what the charge was, by reading the indictment and what the plea was by stating it, was done. We, therefore, think the record shows the requirement of the section quoted was substantially complied with.
3. In the case of Commonwealth v. McGuire, 7 Kentucky Law Reporter, 814, it was decided by this court that all persons are now qualified to give evidence as witnesses in judicial proceedings, except those expressly excluded by section 8, article 8, chapter 29, Gen. Statutes.
Article 8 referred to contains eight sections, the last one being as follows: "If any person be convicted of either of the offenses described in the five preceding sections, he shall ever afterwards be disqualified from giving evidence in any judicial proceeding, or from being a witness in any case whatever."
By section 5, chapter 107, Revised Statutes, it was provided that, "except as otherwise expressly provided, no person who has been, or shall be convicted of felony, . . . . shall be competent as a witness in any case unless he has been pardoned; nor shall a person convicted of perjury, or subornation of perjury and the various statutory offenses of pardoned."
But in Broadus v. Broadus, 10 Bush, 299, the rule was laid down and ever since adhered to, that "when a section in the Revised Statutes has been omitted in the General Statutes, or any change made, however slight, in a general law, the whole law, as found in the Revised Statutes on that subject must be considered and treated as repugnant to the provisions of the General Statutes."
As, therefore, section 8, article 8, chapter 29, relates to the subject of disqualifying persons as witnesses who have been convicted of crimes, and is the only section in the General Statutes containing any provision in regard thereto, it must be treated as controlling the question of Albert Turner's qualification as a witness in this case. And, as he does not appear to belong to the class excluded thereby, he was, we think, properly permitted to testify.
It is true, as section 8 reads, persons convicted of perjury and false swearing, denounced in sections 1 and 2, of article 8, are not excluded and may testify, while those convicted of subornation of perjury, be a competent witness although the same class, described in the five succeeding sections, are disqualified. Obviously that omission was not intended and resulted from oversight. But it does not affect the question of Turner's competency one way or the other, for, as said in Broadus v. Broadus, "this court can not . . . . look to the Revised Statutes to supply any defect that may appear in any general law introduced in the General Statutes, except such laws as are expressly left unrepealed." If there was any doubt on the subject it would be removed by section 241, Criminal Code, hereafter quoted, where the qualification of an accomplice to testify as a witness in behalf of the Commonwealth is recognized.
4. It is contended the court erred "in failing to instruct the jury that evidence of extra judicial confession of guilt was not such evidence as the law makes necessary to corroborate the evidence of Turner, an avowed accomplice; and also erred in failing to instruct the jury that Turner's evidence could not furnish the corroboration necessary to the support of evidence of an extra judicial confession."
The two sections of the Code relating to proof of confession, and to the testimony of an accomplice, are as follows:
In Greenleaf on Evidence, it is said that all confessions of this kind, extra-judicial, are receivable in evidence, being proved like other facts, to be weighed by the jury. But in the United States the prisoner's confession, where the corpus delicti is not otherwise proven, has been held insufficient for his conviction. See secs. 216-'7, and cases cited.
The same author further says, that there is no rule of law requiring the testimony of an accomplice to be corroborated by other evidence. But that it is now so generally the...
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