Rankin v. The Commonwealth

• Decision Date: 11 December 1884
• Citation: 82 Ky. 424
• Parties: Rankin v. The Commonwealth.
• Court: Kentucky Court of Appeals

82 Ky. 424

Rankin v. The Commonwealth.

Court of Appeals of Kentucky.

December 11, 1884.

APPEAL FROM JEFFERSON CIRCUIT COURT.

KINNEY & KINNEY, BAKER & ATCHERSON, L. S. MUNFORD AND H. CLAY FOR APPELLANT.

P. W. HARDIN, A. G. CARUTH AND R. J. BRECKINRIDGE FOR APPELLEE.

JUDGE LEWIS DELIVERED THE OPINION OF THE COURT.

Appellant having been tried under an indictment charging him with the murder of Martin Cody, found guilty and sentenced to confinement in the penitentiary for life, appeals.

The homicide occurred after nightfall, on the corner of Twelfth and Grayson streets, near to a grocery store and saloon, in the city of Louisville, and there was evidence introduced on behalf of the Commonwealth, which tended to show the offense charged was committed.

The first witness introduced for the defense was one W. A. Cain, who testified he saw the first part of the difficulty between appellant and the deceased, and his evidence tended to show an altercation and a threat, on the part of deceased, to then and there take the life of appellant.

The next witness called for the defense was Ed. Kenedy, who, upon being asked if he had heard deceased say any thing about appellant, answered in the negative. He was then asked what he had said, as a witness, when testifying before the judge of the court, upon the application of appellant for bail. But the question being objected to, and the witness not answering, he was asked if what he said then was true. To that question he answered, "No; Charley Rankin made it up, and influenced me to say it. I don't intend to tell a lie." Being again asked what it was he swore to before, he answered that he then swore that he was sitting on the corner of Fourteenth and Madison streets, and Martin Cody came along and stopped and said: "Do you see that man," pointing to Rankin, "I got it in for that man; he insulted my sister. I bursted his head with a brick, and the next time I will finish him."

Upon further interrogation the witness detailed, circumstantially, the time and places when the story for him to swear to, and which he did swear to, was, as he said, made up. And in the course of the interrogation it was developed that the day before he was called as a witness in this case, he and his mother, together, went to the office of the Commonwealth's attorney, and informed him that what he had sworn to, upon the motion for bail, was false. But he never, before being introduced as a witness on the trial, informed any one besides his mother and the Commonwealth's attorney and when asked by defendant's counsel why, as he had led them to believe what he previously swore to was true, he did not come and let them know it was false, the Commonwealth's attorney interposed and said he told the witness not to do it, adding that he wished to show the methods of the defense.

Thereupon counsel for the defense moved the court to discharge the jury and continue the case, and, in support of the motion, filed an affidavit by appellant. In that affidavit he stated substantially that he was surprised by the statement and conduct of the witness, Kenedy, who, before being summoned, voluntarily gave information to appellant's counsel of what he subsequently stated on the motion for bail, and he, appellant, fully believed that said statement was true, and had not the slightest knowledge it was false, or any information before the witness was sworn on this trial that he would swear it to be false; that the Commonwealth's attorney, with full knowledge before the witness was called, that his testimony was false, told him not to so inform appellant's counsel. He further stated that he believed if the opportunity was afforded him by a continuance, he could show that the witness, Kenedy, had been induced to change his testimony, and that, without fault upon his (appellant's) part, he had been put to great disadvantage, and could not safely continue the trial before the jury then empaneled.

On the next day of the trial, appellant's counsel asked that the witness, Cain, might be recalled. But the witness failing to appear, counsel for appellant stated to the court that since the adjournment of court they have ascertained that he testified falsely in his answer to the question whether he had been in the penitentiary, and they, therefore, felt it to be their duty to make the statement to court, and they had already done so to the Commonwealth's attorney.

The Commonwealth's attorney thereupon moved to expunge the testimony of the witness, Cain, from the record, stating that he was informed he testified without being sworn, and the motion not being objected to, the evidence was, by the court, directed to be with drawn. But subsequently it was directed by the court to remain for the consideration of the jury, and they were instructed to consider it.

Appellant's counsel again moved the court to discharge the jury and continue the case, and, in support of the motion, he filed an...