Payne v. Commonwealth

• Decision Date: 02 October 1934
• Citation: 255 Ky. 533
• Parties: Payne v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

Page 533

255 Ky. 533

Payne v. Commonwealth.

Court of Appeals of Kentucky.

Decided October 2, 1934.

1. Homicide. — Where there is no eyewitness to a killing, jury should be instructed on manslaughter and self-defense.

2. Homicide. — Where one willfully and with malice aforethought mortally wounds another with deadly weapon, and third person immediately thereafter inflicts distinct wound, whether mortal or not, on wounded person and thereby accelerates death, both are guilty of murder.

"Mortally wounded" and "mortal wound" means deadly, death-producing, or an act destructive to life which causes death.

3. Homicide. — Evidence that accused struck two blows on deceased's head, after which he was carried to automobile in helpless condition, that there was hole in deceased's head before his stepson directed three blows at head with car tool, and that there was profuse bleeding before stepson struck deceased, established that wounds inflicted by accused were "mortal," and was sufficient to submit to jury question of accused killing deceased with blunt instrument.

4. Homicide. — In prosecution for willfully and maliciously striking another with deadly weapon with intent to kill, definition of term "deadly weapon" is proper (Ky. Stats., sec. 1166).

5. Homicide. — In homicide prosecution, material inquiry is whether killing was done with malice and intent to kill and in manner by or through which killing was done, whether implements used were deadly weapons or not.

6. Homicide. — Consequences of act reckless in its character of human life and committed under circumstances calculated to endanger life are presumed to be intended, so that, if act producing death is willfully and maliciously committed, whether implements used were deadly weapons is immaterial, because crime is murder.

7. Homicide. — In homicide prosecution in which indictment charged crime was committed by deceased being struck and killed with blunt instrument, failure to define blunt instrument as used in indictment and instruction held not error.

8. Criminal Law. — Instructions must be based on the evidence and given to suit case in hand.

9. Homicide. — In homicide prosecution, where circumstances establish crime is murder or nothing, although no eyewitnesses were present, murder, manslaughter, and self-defense instructions need not be given.

10. Homicide. — Where evidence showed that accused went to porch and struck deceased with club and that there was no struggle between them, accused was not entitled to instruction on self-defense and manslaughter.

11. Criminal Law; Homicide. — Where only evidence connecting accused with killing was testimony of witness on examining trial, and witness changed testimony before jury and made exonerative admissions as to previous testimony, which testimony was true, and whether accused was guilty beyond reasonable doubt, held for jury.

12. Homicide. — Where evidence showed that accused went to porch and struck deceased with club, absence of blood on porch need not be explained by prosecution to warrant conviction for murder.

13. Criminal Law. — Credibility of witnesses and weight to be given their testimony are for jury.

14. Criminal Law. — Court of Appeals will not regard only testimony of accused and her witnesses and reverse on ground of insufficiency of evidence.

15. Criminal Law. — Court of Appeals will not disturb verdict of jury on facts, unless verdict is palpably against evidence.

16. Criminal Law. — Only such conduct of bystanders as improperly influences jury in consideration of verdict may be complained of by convicted defendant, because requirement that defendant be given public trial does not limit number that may or may not attend trial.

17. Criminal Law. — Accused was afforded fair and impartial trial, although courtroom was filled with bystanders, where only act of indecorum was laughter over love note and kissing episode of defense witness.

18. Criminal Law. — Newspaper publicity dealing with offense does not entitle accused to continuance or change of venue.

19. Criminal Law. — To warrant continuance or change of venue, there must be evidence other than, and independent of, newspaper articles, showing that condition of public sentiment is such that defendant has been deprived of fair trial.

20. Criminal Law. — Where accused before or during trial did not claim that newspaper articles, state of public sentiment, or presence of large crowd, or its conduct, was interfering with, or preventing, her from receiving fair and impartial trial, accused would not be permitted to rely thereon for new trial or reversal after adverse verdict.

21. Criminal Law. — No presumption exists that jury was influenced by state of public feeling in the county or presence or conduct of bystanders when it rendered its verdict finding defendant guilty of murder.

22. Homicide. — In prosecution against wife for the killing of her husband, evidence relating to wife's previous marriages and whereabouts of former husbands was incompetent but not prejudicial.

Appeal from Muhlenberg Circuit Court.

HUBERT MEREDITH for appellant.

BAILEY P. WOOTTON, Attorney General, and DAVID C. WALLS, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Affirming.

Effie Payne has been convicted before a jury of the crime of murder and her punishment fixed at confinement in the reformatory for life.

The instructions of the court confined the jury to the crime of murder. No instructions were given on manslaughter and self-defense. The indictment charged the crime was committed by the deceased being struck and killed "with a blunt instrument — a deadly weapon." It is insisted instruction No. 1 is erroneous "because the question of whether the so-called club was a deadly weapon should have been submitted to the jury." To sustain this insistence she cites to us Owens v. Commonwealth, 187 Ky. 207, 218 S.W. 719; Burgess v. Commonwealth, 176 Ky. 326, 195 S.W. 445; and Cheatham v. Commonwealth, 228 Ky. 765, 15 S.W. (2d) 525.

It is strenuously urged that the facts in this case bring it within the rule, where there is no eyewitness to a killing the court should give to the jury instructions on manslaughter and self-defense. Illustrative of it see Brown v. Commonwealth, 117 Ky. 766, 78 S.W. 1126, 25 Ky. Law Rep. 1896; Frazier v. Commonwealth (Ky.) 114 S.W. 268; Little v. Commonwealth, 209 Ky. 263, 272 S.W. 721; McClerkin v. Commonwealth, 221 Ky. 680, 299 S.W. 570; Messer v. Commonwealth, 90 S.W. 955, 28 Ky. Law Rep. 920; Fletcher v. Commonwealth, 239 Ky. 506, 39 S.W. (2d) 972; Bast v. Commonwealth, 124 Ky. 747, 99 S.W. 978, 30 Ky. Law Rep. 967; Frasure v. Commonwealth, 169 Ky. 620, 185 S.W. 146; McGee v. Commonwealth, 246 Ky. 445, 55 S.W. (2d) 382; and Cox v. Commonwealth, 158 Ky. 435, 165 S. W. 411.

It is also argued the verdict is not supported by the evidence and so given under the influence of passion and prejudice. Incompetent evidence is complained of, and, lastly, it is argued, the defendant was convicted on "perjured testimony" when "the immense throng that packed the court house and their hostile attitude toward the appellant and her defense throughout the trial, prevented her from having a fair trial of her case." A resume of the evidence is required correctly and fairly to dispose of these questions.

The accused, Effie Payne, and Joe Payne, were husband and wife, both of them were married before their marriage to each other, she having a son by her former husband and he two sons by a former wife. Their sons lived with them, that of Mrs. Payne being twenty, and the sons of Joe Payne thirteen and sixteen, years of age.

Irene Perry and Ruby Nell Mathis, young girls, had been in the home of the Paynes for about four weeks before the death of Joe Payne. J.D. Ortkies was working at their home and spent the night during which Joe Payne was killed. H.G. Watkins, Estil Crittenden, and Felix Puryear were at the home of the Paynes between 10 and 12 o'clock on the night of the killing, but they left the Payne home around midnight, leaving Effiie Payne, Joe Payne, Joe Payne's two children, Raymond Higgs, the son of Effie Payne, J.D. Ortkies, Irene Perry, and Ruby Nell Mathis. Joe Payne was, at the time of their departure, on the front porch of the home, "about half drunk." Murile Payne, a sixteen year old son of Joe Payne, testified that he and his younger brother went to bed about 9 o'clock and went to sleep, but he awoke and came back into the room and remained until about 12 o'clock, when he and Raymond Higgs went to bed, leaving his father, Effie Payne, J.D. Ortkies, Irene Perry, and Ruby Nell Mathis about the house. He stated that about fifteen or twenty minutes before he went to bed Joe Payne was walking around, going toward the road in the direction of the garage. He was in the road when he last saw him.

J.D. Ortkies testified that he was working for Mrs. Payne; he arrived at her home about 6 o'clock, stayed until 10 o'clock, when he and Joe Payne went to Perry's drug store, where Payne purchased two packages of cigarettes, when they returned, within a few minutes, where he remained until around 12 o'clock, when he was called by Raymond Higgs. Ruby Nell Mathis testified that around 11 or 12 o'clock she and Irene Perry went to bed, and thereafter "sometime between twelve and one o'clock" Mrs. Payne "got out of the bed," "came through," "turned the radio on loud," and went out on the porch. "Mrs. Payne had gotten up and gone on the porch" when she (Ruby Nell Mathis) "got up" and "went to the window," "the front window looking out on the front porch."

At this point she was asked and answered as follows:

"Q. Did you see anybody on the front porch? A. Yes, sir.

"Q. Whom did you see? A. I saw Joe Payne lying on the porch.

"Q. Lying on the porch? A. Yes, sir.

"Q. Did anything happen there on the porch? A. I saw Effie Payne hit him twice.

"Q. Saw Effie Payne, the defendant here, hit Joe...