Ratliff v. Commonwealth

• Decision Date: 29 November 1918
• Citation: 182 Ky. 246,206 S.W. 497
• Parties: RATLIFF v. COMMONWEALTH. [a1]
• Court: Kentucky Court of Appeals

206 S.W. 497

182 Ky. 246

RATLIFF v. COMMONWEALTH. ^[a1]

Court of Appeals of Kentucky.

November 29, 1918

Appeal from Circuit Court, Perry County.

John Ratliff was convicted of willful murder, and he appeals. Affirmed.

Sampson J., dissenting.

H. C Faulkner, of Hazard, and W. A. Stanfill, of Hyden, for appellant.

Chas H. Morris, Atty. Gen., and O. S. Hogan, Asst. Atty. Gen., for the Commonwealth.

HURT J.

The appellant, John Ratliff, together with Rude Wooten, Nannie Wooten, and Bud Couch, was indicted in the Perry circuit court, and accused therein of the willful murder of John Baker. Having been brought to trial, he was found guilty by the jury, which fixed the punishment to be imposed upon him for the crime at death. His motion to set aside the verdict and grant him a new trial having been overruled, the trial court adjudged him to be guilty of murder, and to be punished with death, in accordance with the verdict of the jury and in the manner prescribed by law in such cases. He has appealed from the judgment, and seeks its reversal, because, as is contended, the trial court erred to his prejudice (1) by overruling a demurrer to the indictment as a whole; (2) by overruling a demurrer to the second, third, and fifth counts of the indictment; (3) by overruling the motion of appellant to require the commonwealth's attorney to elect upon which count of the indictment he would rely for a conviction (4) by overruling appellant's motion made during the trial to discharge the jury and to continue the case, or to impanel another jury for the trial; (5) by misinstructing the jury, and failing to instruct the jury as to the entire law of the case; (6) by the admission of incompetent evidence over appellant's objection; (7) by overruling appellant's motion to direct the jury to find him not guilty, and because the verdict was caused by passion and prejudice. The above contentions will be considered in the order in which they are stated.

(a) The indictment, in its accusative part, charges the appellant, Rude Wooten, Nannie Wooten, and Bud Couch jointly with the crime of willful murder, which it alleges was committed by them in manner and form as is set out in five separate counts. In the first count the manner of committing the murder is alleged to have been that appellant, Rude Wooten, Nannie Wooten, and Bud Couch conspired for the purpose of killing and murdering one John Baker, and in pursuance to the conspiracy, and while it existed, they killed and murdered Baker, by cutting him with knives and striking him with stones, from the effects of which Baker instantly died. In the second count it is alleged that the murder was committed by Rude Wooten as the principal in the first degree, and by appellant, Nannie Wooten and Bud Couch as principals in the second degree, by being present at the time and place of the killing of Baker, and aiding and abetting Rude Wooten in doing the killing. The third count alleges that Nannie Wooten did the killing, and that appellant, Rude Wooten, and Bud Couch were aiders and abettors. The fourth count charges, that appellant killed Baker, and that Rude Wooten, Nannie Wooten, and Bud Couch were aiders and abettors; while in the fifth count it is alleged that Bud Couch killed Baker, and that appellant, Rude Wooten, and Nannie Wooten aided and abetted him in so doing.

The indictment fully complies with the requirements of sections 122 and 124, Criminal Code, in that the title of the prosecution, the name of the court, and the names of the parties are clearly specified, and it contains "a statement of the acts constituting the offense, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended; and with such degree of certainty as to enable the court to pronounce judgment on conviction, according to the right of the case." It is likewise direct and certain as regards the party charged, the offense charged, the venue, and the circumstances necessary to constitute the offense. Under section 126, Criminal Code, an indictment for murder can charge but one offense, but, in describing how the offense was committed, the pleader may describe the manner of its commission in as many different ways as may be necessary to present his case and to meet the testimony of different witnesses and circumstances proven. Each count, however, must contain a statement of facts which will constitute the crime of murder, and the statement of facts in the count is read with the charge of murder preferred in the accusative portion of the indictment. Hence, where several persons are indicted for a murder, and after a charge of guilt of the crime is made against all, in the accusative part of the indictment, the manner and form of its commission may be set out in different counts, one or more may be charged with having done the killing and the others accused with being the aiders and abettors. An indictment of this kind is not subject to criticism for duplicity, and but one offense is charged, although, the manner of its commission is set out in different modes. Com. v. Hargis, 124 Ky. 356, 99 S.W. 348, 30 Ky. Law Rep. 510; Thompson v. Commonwealth, 1 Metc. 13; Angel v. Com., 18 S.W. 849, 14 Ky. Law Rep. 10; Cupp v. Com., 87 Ky. 35, 7 S.W. 405, 9 Ky. Law Rep. 877; Howard v. Com., 110 Ky. 356, 61 S.W. 756, 22 Ky. Law Rep. 1845; Benge v. Com., 92 Ky. 1, 17 S.W. 146, 13 Ky. Law Rep. 308; Mulligan v. Com., 84 Ky. 229, 1 S.W. 417, 8 Ky. Law Rep. 211; Taylor v. Com., 90 S.W. 581, 28 Ky. Law Rep. 821; May v. Com., 153 Ky. 141, 154 S.W. 1074; Anderson v. Com., 144 Ky. 215, 137 S.W. 1063. In the instant case the indictment charges but one offense, and that is the murder of John Baker; and in the accusative part of the indictment appellant, Rude Wooten, Nannie Wooten, and Bud Couch are charged with the crime of murder, but each of the five counts alleges it to have been committed by them in a different mode. The fact that the pleader unnecessarily, in the second, third, fourth, and fifth counts again alleges, that the one accused, as the principal in the first degree is guilty of murder does not make the indictment bad for duplicity, as charging another offense, as the indictment charges but one offense, and the reiteration is but surplusage, which never renders an indictment insufficient. The allegations in each count relate to and must be read with the charge of murder made in the accusative part of the indictment. A person of ordinary understanding could not fail to understand that the indictment charges the appellant with the crime of willful murder, and committed in one of the following modes: (1) Jointly with Rude Wooten, Nannie Wooten, and Bud Couch; (2) as an aider and abettor of Rude Wooten; (3) as an aider and abettor of Nannie Wooten; (4) as a principal in the first degree, with the Wootens and Couch aiding and abetting him; (5) as an aider and abettor of Bud Couch. In either state of case, he would be guilty of murder. The demurrer to the indictment as a whole was therefore properly overruled.

(b) For the reasons above given the demurrers to the second, third, and fifth counts of the indictment were properly overruled, as each of the counts contained a statement of all the facts necessary to constitute the crime of murder on the part of appellant, and each of the counts made a valid indictment for that crime, when read with the accusative portion of the indictment, as it should be.

(c) The motion to require the commonwealth's monwealth's attorney to elect upon which count of the indictment he would rely for conviction was necessarily overruled. Such a motion could not have any merit, unless the indictment charged guilt of more than one offense. To require the prosecutor, where the modes of committing the crime alleged are set out in different counts, to rely for conviction upon the manner set out in one particular count, would defeat the very purpose for which it is permitted to set out the different modes in which the crime may have been committed in different counts. The proper practice, as prescribed by the Criminal Code, subsection 3 of section 165, where more than one offense is improperly charged in an indictment, is a demurrer to the indictment. If the indictment improperly charges more than one offense, and the commonwealth's attorney will dismiss one of the charges, the demurrer is then overruled, otherwise it is sustained. Hence, if the indictment charges only one offense, there is no basis for a demurrer upon that ground.

(d) During the course of the trial, and after a witness for the commonwealth had testified in chief, the appellant and his attorney learned that the witness was a niece of one of the jurors who had been selected for the trial of the action. They immediately prepared and filed their joint affidavits which stated, in substance, that they were ignorant of the fact that the juror was related to the witness at the time the juror was accepted, and had just learned of such relation, and that if they had known such fact when the juror was accepted they would have challenged him for cause and peremptorily, and moved the court to discharge the jury and to impanel another jury, or else continue the action. This motion was overruled, and appellant complains of it as a prejudicial error. It is insisted that the witness, at the time and place at which she observed the facts about which she testified, was there for the purpose of engaging in lewd conduct with two men, and was guilty of so doing, and that the attorney was embarrassed in bringing out these facts before the jury for fear that it might cause resentment on the part of the juror who was related to her. The bill of exceptions, however, shows that all of the facts touching the conduct...