Salisbury v. Commonwealth
| Decision Date | 25 June 1881 |
| Parties | Salisbury v. The Commonwealth. |
| Court | Kentucky Court of Appeals |
1. The appellant had exercised all proper diligence in attempting to obtain his witnesses, and the court should have granted him a continuance.
2. The indictment is sufficient.
3. The motion to compel appellee to elect upon which count of the indictment it would proceed was properly overruled.
4. The evidence as to where deceased had been and what he had been doing for several days before the killing was incompetent.
5. The court should have, upon the appellant's motion, excluded the father-in-law of deceased, who was a witness for appellee, while the other witnesses were testifying.
6. There is no law requiring the court to cause the bodies of deceased persons to be exhumed at the cost of the commonwealth.
7. The court erred in its instruction to the jury in regard to malice.
APPEAL FROM FLOYD CIRCUIT COURT.
R. H WEDDINGTON FOR APPELLANT.
1. The court erred in refusing a continuance. Appellant was confined in jail, and did his utmost to obtain his witnesses. The time given was insufficient. Officers refused to execute the subpœ nas, and at the end of the time given he was in no better condition to try.
2. Error was committed in excluding competent testimony.
3. The court erred in its instructions.
P. W HARDIN, ATTORNEY GENERAL, FOR APPELLEE.
1. Appellant had a fair and favorable trial. Even if appellant had been an officer with a warrant of arrest in his hand, his act was murder.
2. The instructions are exceedingly fair to the appellant.
John Morris was killed in the county of Floyd on the 9th of February, 1881.
Five days thereafter the appellant and Wm. Banks were arrested tried, and held without bail by an examining court to answer for the murder of Morris.
On account of the insufficiency of the jail, they were sent to the jail of Boyd county, which is about eighty miles from Floyd court-house, where they were indicted on the 30th of March.
Two days before the indictment was found they were lodged in the Floyd county jail.
On the day after the indictment was filed in court the case was called for trial, and they applied for a continuance upon their joint affidavit, which was refused, but a postponement of ten days was allowed for preparation.
By direction of the appellant's counsel, subpœ nas were issued to the several counties where his witnesses resided.
At the end of the postponement the case was again called for trial and again the appellant moved for a continuance on the ground of the continued absence of his witnesses upon whom, he alleged, the subpœ nas had not been served, because the ministerial officers of the counties where they resided had refused to accept or execute them.
His motion was overruled, a separate trial awarded, and he was convicted of the offense of murder, and sentenced to the penitentiary for life.
From that sentence he appeals to this court, and here complains--
1st. That he was not allowed a legal opportunity to procure the presence of his witnesses whose testimony was material to his defense.
He stated in his affidavit for a continuance, in substance, that J. M. Pigman, a justice of the peace of Letcher county, had, on the oath of his co-defendant, Wm. Banks, issued two warrants for the apprehension of the deceased, charging him in one with maliciously stabbing Emory Campbell, in Perry county, and in the other with maliciously shooting and wounding Banks, in Floyd county; and that the warrants were placed in the hands of A. H. Amburgy, sheriff of Letcher county, who deputized Banks, in writing entered on the back of the warrants, to execute them, and at the same time summoned the appellant to go with Banks as a guard to aid him in the act. That he could prove these facts by those officers, who resided near sixty miles from Floyd court-house. And he could also prove by Emory Campbell and Joseph Stacy, of Perry county, that " deceased, in 1875, in Perry county, Kentucky, willfully and maliciously stabbed and wounded the said Campbell, and not in his (Morris') self-defense."
He stated that he could prove by Hallifield and Combs that, after Morris was killed, the appellant and Banks " sent a man to have a warrant obtained for them, and a guard summoned to protect them, so that they might surrender and have an examination of the charge of them having killed Morris before the proper authorities, and that the party had gone to obtain the warrant when they were arrested by Hoover and his posse. "
It is contended by appellant's counsel that the clause of section 189, Criminal Code, which reads: " When the ground of application for a continuance is the absence of a material witness, and the defendant makes affidavit as to the facts which such witness would prove, the continuance shall be granted, unless the attorney for the commonwealth admit upon the trial that the facts are true," destroys the power of the court to postpone the trial to any time in the same term when the ground of application for a continuance is such as it contemplates.
To this construction we do not agree, because if the party should be given a reasonable opportunity to procure the presence of his absent witnesses and prepare for trial, it is unquestionably within the legal power of the court to order a postponement to a day in the same term. (Section 188, Criminal Code.)
There are, however, but two facts to determine about the question of continuance in this case--
1st. Were the witnesses material?
2d. Did the appellant use due diligence in his effort to have them present. (Morgan v. Commonwealth, Bush.)
Section 35, Criminal Code, says: " An arrest may be made by a peace officer or by a private person," and section 37: " A private person may make an arrest when he has reasonable grounds for believing that the person arrested has committed a felony."
There is no provision of the Code authorizing any other person than a peace officer to make an arrest in obedience to a warrant of arrest.
Hence the authority to execute the warrant attempted to be conferred by the sheriff, Amburgy, upon Banks, a private person, was illegal, and of itself furnished no protection to Banks and the appellant. But the fact that the sheriff had no legal authority to deputize Banks to execute the warrant and the possession of it by the latter did not deprive the one having reasonable grounds for believing that the deceased had committed a felony of the right to arrest him.
For without any warrant a private person may make an arrest when such is the fact. (Secs. 37 and 46, Criminal Code.) And the illegal possession of a warrant does not alter the case.
But the existence of reasonable grounds for believing, either by Banks or the appellant, that the deceased had committed a felony, furnished no authority or right to the other to aid in making the arrest, unless he likewise had reasonable grounds so to believe.
Therefore the summons of the appellant by the sheriff and by Banks, to aid the latter in making the arrest, was illegal, because none but an officer making an arrest may summon persons to aid in it. (Sec. 41, Crim. Code.) But it was competent for the appellant to show that the warrants were legally issued and placed in the sheriff's hands, and that the latter summoned him to aid in making the arrest; yet notwithstanding he may show these facts on a future trial, if he should not also show that he had reasonable grounds for believing that the deceased had committed a felony, they will avail him nothing; but in the presence of such proof they would be competent to illustrate his motive. It was material...
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