Powell v. Commonwealth
| Decision Date | 27 January 1939 |
| Citation | 276 Ky. 234 |
| Parties | Powell et al. v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
3. Criminal Law. — The "Anti-sweating Act" is intended to exclude and make incompetent confessions obtained by officers or, perhaps, others in authority through the application or exercise of most highly improper means or methods, amounting to duress or putting in fear, or the offering of inducements or temptations or otherwise, causing the confessor to make confessions from motives other than by his own voluntary will (Ky. Stats., secs. 1649b-1 to 1649b-4).
4. Criminal Law. — The "Anti-sweating Act" is not intended to exclude any and all confessions made to officers, but only such confessions as were obtained through the means denounced by the statutes (Ky. Stats. 1936, secs. 1649b-1 to 1649b-4).
5. Criminal Law. — In murder prosecution, court did not err in admitting confessions, where defendants did not testify, and witnesses testifying for the commonwealth stated that no coercive measures were employed or any promises of reward made (Ky. Stats. 1936, secs. 1649b-1 to 1649b-4).
6. Criminal Law. — In murder prosecution, exclusion of opinion of defendant's witness that in witness' opinion defendant did not possess an average normal mind, if error, was cured, where that witness was thereafter permitted to testify that defendant was about the dullest child of his age in school, could not learn, and was a very slow pupil.
7. Criminal Law. — Murder convictions would not be reversed because of the fact that the jury went with the sheriff to a picture show, where it was not shown that there was anything in the picture to prejudice the jury against defendants.
8. Criminal Law. — In murder prosecution, prosecuting attorney did not violate the section of the statute forbidding comment on failure of a defendant to testify, by merely stating that defendants "could talk" after defending counsel, in urging jury to acquit defendants on ground of mental incapacity, called jury's attention to the fact that neither defendant throughout the trial had spoken to their attorneys (Ky. Stats., sec. 1645).
9. Criminal Law. — In murder prosecution, prosecuting attorney's statement to jury that a life sentence was subject to parole, which might be exercised any time after eight years of service in prison, was not reversible error.
10. Homicide. — In murder prosecution, evidence held sufficient to establish the corpus delicti.
11. Homicide. — The corpus delicti, as well as the identity of the murdered victim, may be proved by circumstances the same as any other necessary fact for conviction.
12. Criminal Law. — The Court of Appeals possesses no power to commute sentences.
Appeal from Estill Circuit Court.
SHUMATE & SHUMATE for appellants.
HUBERT MEREDITH, Attorney General, and W. OWEN KELLER, Assistant Attorney General, for appellee.
Affirming.
The two appellants, Arnold Powell and Bonnie Griffin, were accused by indictment of murdering Martha Short, which was committed in Estill county near the line between it and Madison county. At their trial they were convicted and given the death sentence. The same grand jury that returned the instant indictment also returned a similar one accusing the same parties of murdering Marion Short, the husband of the victim in the instant indictment. Appellants were first tried on the indictment for murdering the husband and were found guilty and punished with life imprisonment. No appeal was prosecuted therefrom. At a later term of the court they were tried on the indictment for murdering Mrs. Short (which is the instant case) with the result stated. On this appeal from that judgment a number of grounds are argued in brief of counsel for appellants which they insist are sufficient to authorize a reversal of the judgment. As contained in the motion for a new trial they are: (1) Error of the court in obtaining the jury from the adjoining county of Clark; (2) error in overruling appellants' motion for a directed verdict of acquittal; (3) that the verdict is flagrantly against the evidence; (4) error in the instructions submitted to the jury by the court; (5) admission of incompetent evidence offered by the commonwealth over defendants' objections; (6) rejection of competent evidence offered by defendants; (7) misconduct of the sheriff in permitting the jury to go to a picture show on the night of February 17, 1938, while the trial was pending but unfinished; and (8) improper argument of prosecuting counsel. We will dispose of them in the order named.
1. The facts with reference to ground (1) are that the crime which someone committed was of such a brutal nature as to incite the indignation of practically all of the people of Estill county. There had been one trial involving the same facts when appellants were tried for murdering Marion Short on the separate indictment accusing them thereof. The court, however, managed to procure a local jury after that trial in an effort to try the instant one at the term preceding the one at which the judgment complained of herein was rendered; but before that jury was sworn something happened to require a postponement of the trial and the jury so selected was discharged without jeopardy attaching. At the term of the instant trial there were 29 jurymen on the regular panel and none of them qualified, since each of them had an opinion gathered from the notoriety of the case because of the facts stated.
Some of the county's foremost citizens filed affidavits that they were acquainted with the sentiment throughout Estill county, and gave it as their opinion that a fair and impartial jury could not be selected from eligible jurors residing in the county. On such a showing and in such circumstances the court directed the jury to be summoned from Clark county, and we think properly so.
The only case cited in support of this ground is that of Alsept v. Commonwealth, 245 Ky. 741, 54 S.W. (2d) 337. The opinion in that case does not recite the facts upon which the court acted in summoning the jury from another county. It only directed attention to section 194 of the Criminal Code of Practice, and then said that the facts upon which the court acted in that case in procuring the jury from another county were insufficient to sustain his action in that regard; but nowhere does it appear in the opinion what those facts were. An examination of the record shows the entire absence of a good faith effort to procure the jury from the county in which the indictment was returned, and the opinion points out that under the present state of the law this court has authority to review such action and to reverse a judgment of conviction if the requirements of that section are not substantially followed. However, the cases of Scott v. Commonwealth, 250 Ky. 70, 61 S.W. (2d) 1078; Johnson v. Commonwealth, 250 Ky. 297, 62 S.W. (2d) 1025; Williams v. Commonwealth, 258 Ky. 574, 80 S.W. (2d) 573, and others cited therein clearly sustain the court's action in this case and justify the conclusion that a fair effort was made in good faith to obtain a jury from Estill county, and also to sustain the conclusion that it would be impracticable to do so because of the facts hereinbefore referred to. We are clearly of the opinion that this alleged error is without merit.
2, 3. Grounds (2) and (3) relate exclusively to the evidence and will be disposed of together. The two victims, Marion Short and his wife, Martha Short, lived alone without children or other joint occupants of the home in a building containing four rooms, located in a rural section of Estill county. Mr. Short ran a country store in the front room of that building and he and his wife occupied the other three rear rooms as their residence — the immediately adjoining room to the one in which the store was operated being their sitting or family room. It was heated by an old-fashioned fire place. They were each acquainted with the two appellants who resided in the same neighborhood. About 8:30 or 9 o'clock on the fatal night the neighbors discovered a fire in the direction of the Short residence. As soon as they could dress themselves and travel the distance to the scene, the fire had advanced to such an extent that it had practically consumed the building, but the persons gathered there could see through the blaze the bodies of two individuals lying upon the floor of the living room. One of them was smaller than the other and appeared to be that of a female; whilst the other was larger and was supposed to be that of a male person. Physician witnesses who saw the mutilated bodies later so testified in giving their opinion. When the fire became reduced sufficiently for the purpose, the information so gained was substantiated to the extent that there were two bodies, but the fire had burned asunder their heads and some of their limbs, and had so consumed them as that the sex to which each belonged could not be determined. However, portions of the clothing with which the bodies were dressed were found immediately under them at spots and places where the bodies were in immediate contact with the floor, and witnesses testified that the pieces of cloth so found and unburned under the smaller body were parcels of women's underwear; whilst such portions of unconsumed clothing under the larger body indicated that they came from garments worn by a masculine person. There was evidence, though slight, indicating that they corresponded to...
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