Shepherd v. Commonwealth

• Decision Date: 24 February 1905
• Citation: 85 S.W. 191,119 Ky. 931
• Parties: SHEPHERD v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

85 S.W. 191

119 Ky. 931

SHEPHERD v. COMMONWEALTH.

Court of Appeals of Kentucky.

February 24, 1905

Appeal from Circuit Court, Letcher County.

"To be officially reported."

William Shepherd was convicted of murder, and appeals. Reversed.

B. B Golden, David Hays, D. D. Field & Son, and J. G. Forrester for appellant.

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

O'REAR J.

Appellant was convicted of the charge of murder, committed upon Riley Webb. The defense was emotional insanity, and justifiable homicide under an apparent necessity. Appellant and his wife had become estranged and had temporarily separated about two years before the killing of Webb. Appellant claims that the separation was because of Webb's interference with the domestic relations of appellant and his wife. Just before the killing, appellant and his wife had agreed to be reconciled and to resume the married relation. For that purpose appellant visited her at her father's home in Letcher county. Past offenses were condoned, and appellant started to his home, in Leslie county, to prepare for taking his wife there some days later. He was turned back, however, and returning somewhat unexpectedly, found his wife and Webb in company, from which it was reasonably apparent, and proved to be a fact, that they had again been guilty of adultery. The next morning appellant was talking to his wife at her father's, when Webb came to the house. Appellant claims that his wife told him that Webb had threatened his life, rather than that she should leave with him. Incensed at the continued provocation, as he claims, appellant picked up a rifle and shot Webb fatally. He also claims that, at the moment of the shooting, Webb turned upon him with something in his hand, which appellant thought was a pistol. The verdict of the jury found appellant guilty, and sentenced him to life imprisonment.

Upon the trial, there occurred a number of errors for which the judgment must be reversed.

In the first place, it was error for the trial court to have admitted evidence to the jury that appellant had committed other crimes, or that he had been guilty possibly of adulterous acts himself; that he had shot another man, or that he had said that Webb was the third man he had shot. The fact that appellant had shot Webb was not in dispute. His admission of the fact that he had shot him, and that he was the third man that he had shot, could serve no useful or proper purpose in the trial, as it was testified to; appellant having said, merely, according to commonwealth evidence, "He is the third one I have knocked down." Its tendency was rather to lead the minds of the jury away from the consideration of the main facts before them, and tended to prejudice appellant's cause in their minds. For it might be argued, not unreasonably, that if appellant had shot two men before, and was boasting of it, he was a bad man, and one very likely to have committed a crime of a similar nature in this case. In fixing his punishment, the jury were apt, too, to regulate it somewhat by his previous offenses, whereas the only matter legitimately before the jury was whether appellant had feloniously killed Webb, and, if he had, the proper measure of punishment for that act.

Appellant offered to testify that his wife told him immediately before the shooting that Webb had threatened his life, and would kill him rather than let her return with him. The court excluded this evidence upon the ground, it is said, that it was in the nature of a confidential communication between husband and wife, and, as such, was incompetent as evidence, under the Code. In Arnett v. Commonwealth, 114 Ky. 593, 71 S.W. 635, it was held that a dying statement made to the wife of the declarant could be proved against his slayer; that section 606, Civ.

Code "that the wife was incompetent to testify even after the cessation of the marriage relation, to any communication made to her by her husband during marriage," did not apply to criminal prosecutions. With respect to these the common law is in effect in this state, of which Greenleaf on Evidence, § 337, says: "The great object of the rule is to secure domestic happiness by placing the protecting seal of the law upon all confidential communications between husband and wife, and whatever has come to the knowledge of either by the means of the hallowed confidences which that relation inspires cannot be afterwards divulged in testimony, even though the other be no longer living." The rule is founded upon the policy of the law, the object of which is to secure domestic happiness by protecting that state in the inviolability...