Powers v. Commonwealth

• Decision Date: 06 December 1904
• Citation: 139 Ky. 815,83 S.W. 146
• Parties: POWERS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

83 S.W. 146

139 Ky. 815

POWERS v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 6, 1904

Appeal from Circuit Court, Scott County.

"Not to be officially reported."

Caleb Powers was convicted of murder, and appeals. Reversed.

J. R Morton, James C. Sims, R. D. Hill, H. Clay Howard, R. C Kinkead, S. M. Wilson, J. A. Violett, and A. T. Wood, for appellant.

N. B Hays, Loraine Mix, R. B. Franklin, B. G. Williams, T. C Campbell, V. F. Bradley, John K. Hendricks, and Dennis Dundon, for the Commonwealth.

BARKER J.

This case is here for the third time. The opinion on the first appeal is to be found in 110 Ky. 386, 61 S.W. 735, 63 S.W. 976, 53 L.R.A. 245, and that on the second in 70 S.W. 644, 24 Ky. Law Rep. 1007.

When so important a case as this comes to the Appellate Court for the third time, when the evidence has been practically the same on each trial, and when both the state and the accused have been represented by counsel eminent for their learning, their industry, and their loyalty to the trust committed to their keeping, it will be found that the substantial questions raised have, in large measure, at least, already been adjudicated. The record before us affords no exception to the rule as stated. We find that now, as upon both of the former hearings, the validity of the pardon issued by W. S. Taylor to the accused for the offense with which he stands charged is urged in bar of the prosecution against him; that it is again insisted that the commonwealth's evidence was not sufficient to authorize a submission of the case to the jury, and that a peremptory instruction should have been awarded at its close; that those witnesses who are called accomplices of the accused should not have been permitted to testify against him without first extending judicial amnesty to them by dismissing the indictments; and that the court erred in the instructions which were given to the jury. All of these questions were directly passed upon on the former appeals, as were most of the questions of the admission and rejection of testimony. We shall not extend this opinion, either by a restatement of the facts so amply set forth in the opinions upon the former appeals, nor shall we examine in detail the multitude of questions of mere practice, which find ready elucidation by a reference to the principles established by those opinions. But there are two questions presented which are new, and, we think, substantial.

It is hardly necessary to recall the fact that the accused was jointly indicted, by the grand jury of Franklin county, with James B. Howard and others, for a conspiracy to murder William Goebel; that a separate trial was demanded and awarded these two, and that a change of venue was granted the accused, whereby the case against him was transferred for trial to the Scott Circuit Court; that the trial of James B. Howard in Franklin county, just prior to the last trial of this case, resulted in his conviction, and his penalty fixed at confinement in the penitentiary for life; that it was the theory of the commonwealth, which its officers undertook to establish by evidence, that Howard fired the shot by which Goebel was murdered; that in the main, if not altogether, the same counsel represented the commonwealth upon the trial both of Howard and Powers.

Upon the last trial of the case in the circuit court, after the evidence was heard, T. C. Campbell, who had assisted the commonwealth's attorney in the trial of Howard, and also in the trial of the case at bar, made the following statement in his argument to the jury: "Howard was not hung, but eleven of the twelve jurors who tried him were in favor of hanging him and one was for life imprisonment, and the eleven had to come to one." This language was objected to by counsel for appellant, and the court was requested to exclude it from the consideration of the jury. This motion was overruled, and the statement of the counsel allowed to remain with the jury, thus stamped with the approval of the judge. We are of opinion that under all the circumstances of this case the court erred in not sustaining the motion in regard to this statement of counsel. No case was ever tried in Kentucky springing from more exciting causes, or arousing more party passion, than did those of James B. Howard and Caleb Powers. We venture to say that there is scarcely a citizen within the confines of the state who does not know, in a general way, the evidence for and against these men, and who has not some sort of opinion of their guilt or innocence. On the theory of the state, Howard actually committed the murder of a man then claiming to be, and afterwards adjudicated to be, the Governor-elect of the commonwealth of Kentucky. Howard had been sentenced only to life imprisonment. The accused, on the theory of the commonwealth, was merely an accessory before the fact to this murder. It could not be overlooked that the jury, who were to fix his sentence, if he was found guilty, knew what verdict the jury had rendered in the Howard case, and it was not unnatural that a specially employed representative of the commonwealth, ardently desiring to impose the death penalty in this case, should seek to weaken the effect on the jury's mind of a less penalty having been meted out to the chief offender. The counsel in question (since dead) had a national reputation as a criminal lawyer, and it is said of him that his appeals to the jury were made with passionate eloquence and great dramatic power. There was not, and could not have been, legally, any evidence in the case warranting the obnoxious statement. It was a gratuitous declaration, without lawful foundation, in substance and effect conveying incompetent evidence to the jury.

The Attorney General concedes in his brief, as he did upon the argument at bar, that the statement was improper and unwarranted. His only contention in regard to it is that it was not prejudicial. This position is untenable. We can conceive no statement which counsel could have made more certainly fraught with danger to the accused, or which was more likely to arouse passion or prejudice in the minds of the jurors, than that under consideration. The very air was surcharged with the excitement of a political struggle which had convulsed the state, and threatened its foundations with the strain of revolution. The statement undertook to reveal to the jury the secrets of the jury room in the Howard case and to inform them that of the twelve eleven were for inflicting the death penalty; that one stood out for life imprisonment, and by his stubbornness had forced the eleven to come to him. It was a statement not only improper in itself, but one which, of necessity, the counsel for the accused were powerless to meet. It purported, on its face, to be a secret, and was not, therefore, subject to open investigation or contradiction. Unless we have reached a point in criminal procedure where unauthorized and improper statements of counsel for the state will never be held to prejudice the substantial rights of the accused, it is impossible for us to allow this verdict to stand, based, as it is, in part, at least, upon improper testimony, not even buttressed about by the sanctity of an oath, and which the accused could neither meet, contradict, nor explain. In the case of James B. Howard v. Commonwealth, 61 S.W. 756, 22 Ky. Law Rep. 1845, it appeared that Robert B. Franklin, the regular commonwealth's attorney, did not participate in the prosecution, because of illness, and his place was supplied by the appointment of a pro tempore attorney, who, in his closing argument to the jury, said: "I am commissioned by Robert Franklin to say to the jury that he is in thorough accord and sympathy with the prosecution, and that he thinks the defendant guilty, and hopes the jury will hang him higher than Haman." The court held that this was a reversible error, and it was the only question of law presented by the record upon which all of the members of the court agreed. In the case of George Howard v. Commonwealth, 67 S.W. 1003, 24 Ky. Law Rep. 93, it was said: "It also appears from the bill of exceptions that the commonwealth's attorney, in course of his argument to the jury, stated to them that defendant's attorney, who had just addressed the jury in behalf of the defendant, 'was a high-priced lawyer, and was never employed unless in bad cases, and that whenever he was employed by a defendant it was understood that the defendant had a bad case,' which was excepted to by the defendant, and overruled by the court. The law secures to a defendant charged with crime the right to be represented by counsel, and a commonwealth's attorney is not justified in his closing argument to the jury to travel outside of the record of the case, and attempt in any way to prejudice the minds of the jury against his counsel. The commonwealth only wants convictions when the testimony and the law warrant them, and the comments of the commonwealth's attorney were improper, and should not have been indulged in." There are many other cases which were reversed by this court for improper conduct of the commonwealth's attorney in their closing argument, where the obnoxious statements were not near so prejudicial as that under discussion, among which are the following: Wilson v. Commonwealth, 54 S.W. 946, 21 Ky. Law Rep. 1333; Rhodes v. Commonwealth, 107 Ky. 354, 54 S.W. 170; Cook v. Commonwealth, 86 Ky. 663, 7 S.W. 155; Rankin v. Commonwealth, 82 Ky. 424; Flint v. Commonwealth, 81 Ky. 186, 23 S.W. 346; Parrott v. Commonwealth, 47 S.W. 452, 20 Ky. Law Rep. 761; Gilbert v. Commonwealth, 51 S.W. 804, 21 Ky. Law Rep. 544; Redmond v. Commonwealth, 51 S.W. 565, 21 Ky. Law Rep. 331; Johnson v. Commonwealth, 61 S.W. 1005, 22 Ky. Law Rep. 1885; ...