Salyers v. Commonwealth

• Decision Date: 29 April 1938
• Citation: Salyers v. Commonwealth, 274 Ky. 284, 118 S.W.2d 208 (Ky. Ct. App. 1938)
• Parties: SALYERS et al. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

118 S.W.2d 208

274 Ky. 284

SALYERS et al. v. COMMONWEALTH.

Court of Appeals of Kentucky

April 29, 1938

As Modified and Extended on Denial of Rehearing June 24, 1938.

Appeal from Circuit Court, Casey County.

Virgil and Luther Salyers were convicted of manslaughter, and they appeal.

Affirmed.

Montgomery & Montgomery, of Liberty, and C. C. Bagby, of Danville, for appellants.

Hubert Meredith, Atty. Gen., and W. Owen Keller, Asst. Atty. Gen for the Commonwealth.

DRURY Commissioner.

About 8:30 a. m. Saturday, January 23, 1937, Virgil Salyers shot Milford Hogue with a shot gun, from which shooting Hogue died the following day about 11:15 p. m. Virgil Salyers, his brother, Luther Salyers, and Johnny Hamilton were charged by indictment with murder pursuant to a conspiracy, and, upon the trial of Virgil and Luther Salyers, they were convicted of manslaughter.The punishment of Virgil was fixed at 21 years, and that of Luther at two years, in the penitentiary.

The Facts.

There had been bad feeling between Milford Hogue and the Salyers family for some years, growing out of the use by the Salyers family of a passway through Hogue's property.They had had previous difficulties and some courthouse experience growing out of these differences.

The evidence for the Commonwealth indicates that Hogue had gone out this morning to feed his sheep and had an armload of shock fodder which he was scattering along a log when he was shot by Virgil Salyers.This log is near a rail fence along this passway.This fence is on an embankment.There was a sleet on the ground that morning, and there was a place on this embankment where the sleet had been broken, and a foot print evidently made to get upon this embankment by some one who hid himself in a corner of the rail fence.This evidence indicates that some one had stood in the corner of this rail fence for some time.Weeds and briers were tramped down, and the Commonwealth contended that it was from this point that Hogue was shot while he had a bundle of fodder, or some of it, in his arms.In his dying declaration Hogue said that Johnny Hamilton shot him, and that Luther Salyers was standing near him, and that both had shotguns.The evidence indicates that Hogue was mistaken about Johnny Hamilton doing the shooting.Virgil Salyers admits that he did the shooting and claims that he did it in self-defense.The evidence indicates that, while Luther Salyers was present, he did not fire a shot.

According to Virgil Salyers, he was walking along the middle of the road and after Hogue had dropped his fodder, Hogue started toward him and said, "Virgil, I have told you and told you to let this road alone"; that Hogue reached his hand into the bib of his overalls and drew a revolver and said "I am going to kill you"; and that Hogue came 10 or 20 steps towards him and that he(Virgil Salyers) shot him; that Hogue turned round when the gun fired and that he(Virgil) put another load in his gun, and Hogue said, "Virgil don't shoot me again, you have killed me."

Virgil insists that he was not in this fence corner concealed, but was in the roadway and had shot Hogue through the fence, but there was much evidence which indicates the account given by Virgil Salyers is incorrect.For example, at one place in his testimony, he says that after the shot was fired he stepped back down into the roadway.No shot were found in this rail fence at the point were Salyers claimed to have shot through it.One of the sheep was shot and died of that wound, and some cornstalks were found there with blood on them and holes in them, indicating Hogue was shot while he had this fodder in his arms and while he was surrounded by the sheep.No pistol was found on or about Hogue, and Luther Salyers testified that he did not see Hogue with a pistol.

Beyond where Hogue was standing there was another rail fence, and shot was found in that fence.A string was stretched from those shots to the corner of the fence where these tracks were found and this string passed along the end of this log where Hogue said he was.The string stretched from these shots in the back fence to the place where Virgil Salyers said he was in the road did not pass near the end of this log where Hogue claimed he was.All of this was a question for the jury, and it was submitted to it under instructions not complained of as to form; and, under such circumstances, we cannot disregard the jury's finding.

Plea in Abatement.

There was an unverified plea filed by the attorneys for Virgil and Luther Salyers on February 11, 1937, the tenth day of the term in which it is charged that Virgil was taken before the grand jury and in the presence of the county attorney who was assisting the grand jury, and without being advised of his constitutional rights, and being ignorant thereof and without an opportunity to consult his counsel, he was required to and did answer all questions that were propounded to him, and was required to disclose to the said grand jury facts with reference to this homicide and his participation therein, and that of Luther Salyers.He says that this evidence was given under compulsion, while he was in custody of the jailer, and that his appearance and testimony before said grand jury was not voluntary on his part, but was given under compulsion, and that said procedure is in violation of his constitutional rights.

If the question involved in this contention had been timely made, and if it had been properly made within the time, there is no doubt but that the indictment should have been quashed, since it appears to be practically the universal rule--in view of constitutional guaranties--that an indictment, either partially or entirely procured upon involuntary testimony of the defendant indicted, will be quashed if application therefor is properly made.See the case of Taylor v. Commonwealth,274 Ky. 51, 118 S.W.2d 140, and other cases cited therein.In that case the ground for quashing the indictment was not only properly framed and made, but the motion was made and the right invoked at the proper time and not after arraignment, and the case had been continued for perhaps more than one time, but which latter dereliction was true in this case.

Section 157 of our Criminal Code of Practice says: "Upon the arraignment, or upon the call of the indictment for trial, if there be no arraignment, the defendant must either move to set aside the indictment or plead thereto."In this case instead of moving to set aside the indictment appellant first entered his plea thereto, but after both arraignment and plea had been made and a continuance of the case until the next term of the court.In the case of Taylor v. Commonwealth,90 S.W. 581, 28 Ky.Law Rep. 819, the same question now under consideration was before us.The motion to quash the indictment or to set it aside, was belatedly made therein--as is true here--and in upholding the action of the trial court in overruling that motion we said (page 584): "We think the court properly refused to set aside or quash the indictment for alleged informality in the organization of the grand jury.Section 157 of the Criminal Code of Practice provides that, 'upon the arraignment, or upon the calling of the indictment for trial, if there be no arraignment, the defendant must either move to set aside the indictment or plead thereto.'In this casethe defendant was arraigned in December, 1904, and pleaded not guilty.He made a motion for a continuance, and also a motion for a change of venue after arraignment, and it was only after the last motion had been overruled that he withdrew his plea of not guilty and entered a motion to quash the indictment.This came too late.Commonwealth v. Smith,10 Bush. 476;Commonwealth v. Pritchett,11 Bush 277;Haggard v. Commonwealth,97 Ky. 308, 30 S.W. 661[17 Ky.Law Rep. 184];Commonwealth v. Adams,92 Ky. 134, 17 S.W. 276 .The defendant could not, by withdrawing his plea of not guilty, enlarge the statutory time in which he was allowed to move to quash the indictment."That holding was reaffirmed by us in the case of Smith v. Commonwealth,91 S.W. 742, 28 Ky.Law Rep. 1254.For such reason alone this alleged error is unavailable.

But it is also unavailable for another reason, which is, that the only manifestation of the facts upon which it was based is an unverified statement of appellant's counsel unfortified by any affidavit--or even statement--of the accused.His mouth remained closed with reference to any fact towards establishing the ground for the motion.Neither is there any other evidence offered, through any other channel, that any such involuntary appearance by appellant before the grand jury was made, or that he even testified at all before the grand jury.It is, therefore, clear, for the reasons stated, that this ground is unsustainable.

The Demurrer to the Indictment.

There were four counts to this indictment.In the first, all three of the indicted defendants are charged with having done this murder pursuant to a conspiracy.In the second...