Shepherd v. Commonwealth

• Citation: 240 Ky. 261,42 S.W.2d 311
• Parties: SHEPHERD v. COMMONWEALTH.
• Decision Date: 29 September 1931
• Court: Kentucky Court of Appeals

42 S.W.2d 311

240 Ky. 261

SHEPHERD v. COMMONWEALTH.

Court of Appeals of Kentucky

September 29, 1931

Appeal from Circuit Court, Floyd County.

Abe Shepherd was convicted of false swearing, and he appeals.

Affirmed.

James &amp Hobson, O. C. Hall, and William Dingus, all of Prestonsburg for appellant.

J. W Cammack, Atty. Gen., and Geo. H. Mitchell, Asst. Atty. Gen., for the Commonwealth.

RICHARDSON J.

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 states 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 charges, 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 charges 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 the occasion and the Sunday about which Slone testifies. Even if this contention be conceded to be correct, the testimony of appellant himself fixed the time and occasion as the same as that which Slone fixed in his testimony. His own testimony supplied the evidence about the absence of which he complains, and, under the rule enunciated in the cases supra, he cannot now complain. Viewing the evidence as a whole, it cannot be said that the rule requiring the testimony of two witnesses, or one witness and strong corroborating circumstances, has not been fully met by the commonwealth in this case. Com. v. Wheeler, 235 Ky. 327, 31 S.W.2d 377; Botner v. Com., 219 Ky. 272, 292 S.W. 805; The appellant relies on the case of Pugh v. Com., 217 Ky. 511, 289 S.W. 1086. In it the defendant was charged with swearing falsely that he had not shot on the public highway. The only evidence offered by the commonwealth to establish his guilt was that he had been seen shooting on the public highway within twelve months before his trial. The facts in it are easily distinguished from the proven facts in the present one.

Appellant complains of instruction No. 2, which is in this language: "Before the jury can find defendant guilty of false swearing his guilt must be established by at least two witnesses, or by one witness and strong corroborating circumstances."

To sustain his criticism of this instruction he cites and relies upon Partin v. Com., 154 Ky. 701, 159 S.W. 542; Howell v. Com., 104 S.W. 685, 31 Ky. Law Rep. 983. The word "established" is used in the above instruction instead of the word "supported," which was used in the one given in the Partin Case. It did not fairly present the question to the jury, and this was our holding in the Partin Case.

In Goins v. Com., 167 Ky. 603, 181 S.W. 184, 186, instruction No. 2 was in this language: "Before you can find defendant guilty *** each element of the crime *** must be proven beyond a reasonable doubt by the testimony of two witnesses or by the testimony of one witness and strong corroborative circumstances."

We approved the giving of this instruction in this language "This instruction is not prejudicial, nor is it subject to the criticism pointed out in Partin v. Com., supra. In that case the court used the clause, 'must be supported'...