Raymond v. Commonwealth

• Decision Date: 26 September 1906
• Citation: 123 Ky. 368,96 S.W. 515
• Parties: RAYMOND v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

96 S.W. 515

123 Ky. 368

RAYMOND v. COMMONWEALTH.

Court of Appeals of Kentucky.

September 26, 1906

Dissenting Opinion, Sept. 28, 1906.

Hobson C.J., dissenting.

Appeal from Circuit Court, Fayette County.

"To be officially reported."

W. R Raymond was convicted of the offense of barn burning, and he appeals. Reversed and remanded.

C. W Miller and W. A. Jesse, for appellant.

N. B Hays and Chas. H. Morris, for the Commonwealth.

BARKER J.

The appellant was tried in the Fayette circuit court and found guilty of the offense of barn burning, and his punishment fixed at confinement in the penitentiary for a term of 6 years.

He was the subtenant of J. C. Ruark, the tenant of S. L. Van Meter, and having had some misunderstanding with the latter, proceedings were instituted against him by Ruark, at the instigation of Van Meter, to evict him from the room he was occupying as subtenant. These proceedings were so successful that appellant was forced to leave the premises in February when the weather was very inclement. He was greatly angered at what he considered this oppression on the part of his landlords, and made threats that he would "get even" with them both. After his eviction he seems to have left the state, and taken up his residence in Cincinnati. On the 10th of July, 1905, the house occupied by Ruark on the Van Meter farm was burned in the nighttime, and on the 6th of August, 1905, the barn of Van Meter was also burned in the night. Appellant was indicted by the grand jury of Fayette county, charged with this latter offense. He was arrested in Cincinnati, brought to Lexington, and tried, with the result before stated.

The conclusion we have reached as to the merits of this appeal renders it improper that we should discuss the evidence further than to say that, in our opinion, it was sufficient to warrant the submission of appellant's guilt or innocence to the jury.

One of the rulings complained of is that the court permitted the fact that Ruark's house was burned to be given in evidence on the trial. This we think was error. The issue being tried by the jury was whether or not appellant burned Van Meter's barn. The fact that, a month before, Ruark's house had also been burned had no legal connection with the guilt or innocence of the accused of the offense with which he stood charged. The first was entirely collateral to the latter, and the fact that there was evidence that the accused had threatened to "get even" with both Ruark and Van Meter did not so connect the two offenses as to make the production of the evidence of one a necessity in establishing the other. At best, the fact that Ruark's house was burned was only an incident which would tend to establish a suspicion in the minds of the jury that he was also guilty of the offense for which he was being tried. The necessity of confining the evidence adduced, to that which tends to establish the issue being tried, is too apparent to need elaborate elucidation. The defendant is called upon to defend himself against the charge set forth in the indictment. He cannot intuitively know how to produce evidence to defend himself against a charge which he cannot in advance ascertain will be made against him.

The case in hand affords a good illustration of the evil arising from a violation of the rule we have under discussion. In the indictment against the accused he is charged with the burning of Van Meter's barn. In the trial, evidence is adduced to show that Ruark's house was burned a month before the burning of Van Meter's barn. This evidence was adduced for the purpose, as the court told the jury, of establishing (if in their opinion, it had that effect) the guilt of the defendant of the offense for which he was being tried. By this evidence he was reduced to the dilemma of either saying nothing as to the burning of Ruark's house, or of attempting to disprove his guilt of that offense. What opportunity was given him to produce witnesses to show his innocence? Suppose, for instance, at the time Ruark's house was burned he was in Louisville, Ky. and could have established an alibi if given an opportunity. No such opportunity was, or could be, given him; and, therefore, he was forced to allow this damaging testi mony to go to the jury undenied, except by his own testimony. The caution of the judge to the jury that they were only to consider this evidence in so far as it tended to establish the guilt of the defendant of the crime of burning Van Meter's barn, in no wise tended to cure the evil of the admission of the incompetent evidence. It simply transferred to the jury the question as to whether the evidence was or was not competent, a decision which should have been made by the court, it being the duty of the latter to decide all questions of the competency of the evidence, and the duty of the former to give the proper weight to that which is competent.

In Russell on Crimes (9th Ed.) vol. 3, p. 279, it is said: "No evidence can be admitted which does not tend to prove or disprove the issue joined. In criminal proceedings the necessity is stronger, if possible, than in civil, of strictly enforcing the rule, that the evidence is to be confined to the point in issue; for where a prisoner is charged with an offense, it is of the utmost importance to him that the facts laid before the jury should consist exclusively of the transaction which forms the subject of the indictment, which alone he can be expected to come prepared to answer. It is, therefore, a general rule, that the facts proved must be strictly relevant to the particular charge, and have no reference to any conduct of the prisoner unconnected with such charge." The foregoing rule is quoted with approval by Roscoe in his work on Criminal Evidence (8th Ed.) vol. 1, page 92. In the case of Snapp v. Commonwealth, 82 Ky. 173, the court, after stating the rule that, where several felonies are parts of the same transaction, evidence of all is admissible on an indictment for any one of them, said: "This rule, however, does not apply to a case like this, where a charge of larceny alleged to have been committed on one day is attempted to be established by proof of another larceny committed on a different day, although from the same party and under the same employment." In the case of Spurlock v. Commonwealth, 20 S.W. 1095, 14 Ky. Law Rep. 605, the defendant was charged with the murder of one Caywood, and it was shown that he belonged to one of two bands of murderers and marauders who were engaged in a feud in Harlan county, Ky.; and it was sought, in his trial for the offense of murdering Caywood, to show that other persons had been murdered by the band to which he belonged. For the admission of this evidence the judgment of guilty was reversed by this court, it being said in the opinion: "He was arraigned and placed on trial for the murder of Caywood, and for this offense he could be tried under the indictment, and for no other; and, therefore, all the evidence as to the offenses certain murderous clans had previously committed was incompetent, or that other men had been shot and killed or wounded, should have been excluded from the jury." In the case of Clark v. Commonwealth, 111 Ky. 443, 63 S.W. 740, the defendant, who was a physician, was charged with the murder of Cora Waller, committed in an attempt to perform an abortion upon her. Upon his trial, evidence of his admission that he had committed abortions upon other women was permitted by the trial court. This was held by this court to be error, it being manifest that the evidence was adduced to establish primarily the guilt of the accused in having perpetrated the act of abortion, and not for the purpose of showing the intent.

Greenleaf in his work on Evidence, after stating the rule that the evidence must correspond with the allegation, says (section 52): "This rule excludes all evidence of collateral facts, or those, which are incapable of affording any reasonable presumption or inference, as to the principal fact or matter in dispute, and the reason is, that such evidence tends to draw away the minds of the jurors from the point in issue, and to excite prejudice, and mislead them; and, moreover, the adverse party, having had no notice of such a course of evidence, is not prepared to rebut it." In Cyc. p. 405, it is said: "The general rule is that on a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime, wholly independent of that for which he is on trial, even though it be a crime of the same sort, is irrelevant, and inadmissible."

The exceptions to the rule as herein stated are those cases where the commission of other offenses tend to show the intent with which the act is committed, or the guilty knowledge of the defendant, or where the two crimes are so interwoven that one cannot be proved without the production of the facts which constitute the evidence of the other. Nothing of this sort existed in the case at bar. If the defendant burned Van Meter's barn at all, the intent to commit the crime with which he stood charged could not be denied; and the fact that Ruark's house was burned a month before was not so connected with the burning of Van Meter's barn as required evidence of the one to be produced in order to establish the other.

Throughout this opinion we have discussed the proposition under consideration as if the evidence showed that Ruark's house was burned by an incendiary, this attitude being more favorable to the commonwealth; but, in reality,...