Shepherd v. Commonwealth
| Decision Date | 29 September 1931 |
| Citation | 240 Ky. 261 |
| Parties | Shepherd v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
2. Criminal Law. — Defendant's admission tending to prove fact essential to establish his guilt of false swearing held competent.
3. Perjury. — Only on question of falsity of charges involved is testimony of two witnesses, or one witness and strong corroborating circumstances necessary to sustain conviction of false swearing.
4. Perjury. — In prosecution for false swearing testimony of two witnesses that they saw defendant near prosecuting witness' home with pistol in hand held to corroborate prosecuting witness' testimony that about same hour of that day defendant made demonstrations with pistol toward prosecuting witness.
5. Criminal Law. — Defendant cannot complain of denial of peremptory instruction where thereafter fact necessary to convict defendant is established by testimony in his behalf.
6. Perjury. — Defendant's testimony fixing time and occasion when he appeared on road with pistol same as that fixed by prosecuting witness as time defendant made demonstrations toward witness constituted sufficient corroboration in prosecution for false swearing.
7. Perjury. — Instructions on sufficiency of evidence to "establish" guilt of false swearing held not prejudicial.
Instruction that before jury could find defendant guilty of false swearing his guilt must be established by at least two witnesses, or by one witness and strong corroborating circumstances, was not prejudicial, since it was monifest that the court used the word "establish", and the jury understood it was used, in the sense of the word "proven".
8. Criminal Law. — Absence of phrase "beyond reasonable doubt" from instruction regarding evidence establishing guilt of false swearing held not reversible error, in view of other instruction.
Other instruction required the jury to believe from the evidence beyond a reasonable doubt the essential and necessary elements to constitute defendant's guilt, before it could find him guilty of crime charged in the indictment.
9. Criminal Law. — Instructions should be read together.
10. Criminal Law. — Omission of phrase "beyond reasonable doubt" from even principal instruction does not warrant reversal, if in separate instruction defendant is given benefit of reasonable doubt on whole case.
11. Perjury. — Evidence that defendant was drunk when he made demonstrations with pistol toward prosecuting witness did not authorize instruction as to intoxication as defense to charge of false swearing regarding demonstrations.
12. Criminal Law. — Error prejudicial to substantial rights of accused must affirmatively appear to authorize reversal (Criminal Code of Practice, secs. 340, 353).
13. Criminal Law. — Phrase "that defendant used pistol in reckless manner" in instruction in false swearing prosecution held not to warrant reversal, even if prosecuting witness' testimany regarding same was not sufficiently corroborated (Criminal Code of Practice, secs. 340, 353).
Circumstances disclosed that it could not be said that, if defendant swore falsely when he testified that he had no pistol on occasion and at time he was supposed to have used pistol in reckless manner, the jury was not authorized by the evidence to find him guilty of false swearing, even though he had not used the pistol in a reckless manner.
14. Criminal Law. — Permitting prosecuting witness to again testify after defendant had closed evidence that defendant testified on former trial that he did not have pistol on occasion in question in prosecution for false swearing held not reversible error (Criminal Code of Practice, sec. 224).
Criminal Code of Practice, sec. 224, confers on trial court a discretion to permit introduction of evidence on original case after defendant's close.
Appeal from Floyd Circuit Court.
JAMES & HOBSON, O.C. HALL, and WILLIAM DINGUS for appellant.
J.W. CAMMACK, Attorney General, and GEO H. MITCHELL, Assistant Attorney General, for appellee.
Affirming.
This appeal requires a review of the indictment, trial, and conviction of the appellant of a charge of false swearing. A proper determination of the questions presented requires a brief statement of the facts as they appear in the record.
It is shown that the appellant, Abe Shepherd, on a Sunday in 1929, was on a highway which passes the residence of Riley Shepherd, not far from the home of Green Slone, which fronts on the same road. When first observed by Riley Shepherd, appellant was in the road, with a pistol in his hand, talking to Woodrow Howard. He and Howard went away, going in the direction of the home of Green Slone, both riding the same mule. As they passed the home of Green Slone, the witness Slone stated, the defendant had a pistol in his hand, and "threw it in toward the barn like he was going to shoot that way." He went on, riding behind Howard, but in about thirty minutes he returned, walking alone, with the pistol in his hand. When he got near his home, he commenced to snap the pistol toward the house. He called to Green Slone and threatened to shoot him, and again snapped the pistol toward the house, but it failed to fire.
Jim Hale testified he saw appellant after he passed the home of Slone and before he returned to Slone's house, and at that time he had a pistol in his hand.
The appellant was subsequently indicted, charged with the "reckless use of a deadly weapon," arising out of his alleged conduct at the home of Green Slone. On a trial thereof, he was introduced as a witness in his own behalf. He admitted he had the pistol in his hand while in the road in the presence of Riley Shepherd, but he denied having it or waving or using it in any manner at Green Slone's.
At the April term, 1929, he was indicted for the crime of false swearing, alleged to have been committed by testifying in his own behalf on the occasion of his trial for the use of "reckless weapons." At his trial the jury found him guilty and fixed his punishment at confinement in the penitentiary for one year. Judgment was accordingly entered, from which he now appeals.
He insists that he is entitled to a reversal on the grounds that (1) the court erred in overruling his motion for a peremptory instruction; (2) in the giving of the instructions; (3) in admitting incompetent evidence in behalf of the commonwealth.
The indictment adequately sets up the offense, the nature and style of the prosecution, the court in which it was pending, the officer administering the oath, the authority and jurisdiction of each, and the specific matter of the alleged false swearing, and knowledge on his part of its falsity. Ross v. Com., 20 S.W. 1043, 14 Ky. Law Rep. 590; Com. v. Lashley, 74 S.W. 658, 25 Ky. Law Rep. 58; Goslin v. Com., 121 Ky. 698, 90 S.W. 223, 28 Ky. Law Rep. 683; Day v. Com., 195 Ky. 790, 243 S.W. 1051; Ferrell v. Com. (Ky.) 127 S.W. 162. The evidence amply establishes the truth of the allegations thereof.
The testimony of the witness Slone, if believed by the jury, sustains the commonwealth's charge, and the testimony of the other witnesses for the commonwealth, coupled with the admission of the appellant, when on the witness stand, that he was present on the occasion and at the time fixed by the witnesses for the commonwealth, is strongly corroborative of the testimony of Slone. Brake v. Com., 218 Ky. 747, 292 S.W. 305; Wolford v. Com., 218 Ky. 420, 291 S.W. 366.
The admissions of the appellant tending to prove any fact essential to establish his guilt were competent evidence against him, as well as corroborative of the testimony of Slone. Anderson v. Com., 203 Ky. 681, 262 S.W. 1105. It is only on the question of the falsity of the charge involved; i.e., he made substantially the certain statements and the same were at the time false and so known to be by defendant, that the testimony of two witnesses is required, or one witness and strong corroborating circumstances are necessary to sustain a conviction. Smith v. Com., 140 Ky. 568, 131 S.W. 493.
The testimony of Riley Shepherd and Jim Hale that they saw appellant on that Sunday near the home of Green Slone with the pistol in his hand, without the admission of appellant, while on the witness stand, that he traveled the road on that Sunday with Woodrow Howard and returned alone, was sufficient to corroborate the testimony of Slone that, on or about the same hour on that certain day, he had a pistol in his hand and was making the demonstrations disclosed by his testimony. Harper v. Com., 211 Ky. 346, 277 S.W. 457.
The appellant asked for a peremptory instruction at the close of the commonwealth's evidence. It was refused by the court. Thereupon he testified in his own behalf. It is a fixed rule of practice that, after making a motion for a peremptory instruction at the close of the commonwealth's evidence and the motion is overruled, any essential fact necessary to convict the defendant may be established by testimony in his behalf, and he cannot complain that the motion was overruled, or that the commonwealth failed to make out its case by testimony produced by it. Minniard v. Com., 214 Ky. 641, 283 S.W. 1001; Brittian v. Com., 200 Ky. 461, 255 S.W. 59; Marcum v. Com., 201 Ky. 527, 257 S.W. 714; Cardwell v. Com., 236 Ky. 676, 33 S.W. (2d) 695.
The appellant insists that the testimony of Riley Shepherd and Jim Hale does not sufficiently corroborate the testimony of Slone, because these two witnesses do not positively identify the occasion or the Sunday that they saw him with Woodrow Howard and the pistol with...
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