Shorter v. Commonwealth
| Decision Date | 07 March 1933 |
| Citation | 248 Ky. 37 |
| Parties | Shorter v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
2. Criminal Law. — Son's testimony that mother charged with killing husband admitted concealing pistol held competent.
3. Criminal Law. — Excluding testimony of wife charged with killing husband that son had sued to collect insurance held proper; record being best evidence.
4. Criminal Law. — There being abundant evidence of son's hostility to mother charged with killing father, error, if any, in excluding testimony that son cursed mother held harmless.
5. Criminal Law. — Voluntary statement to officers by defendant charged with killing husband that she did not know why she had delayed so long held competent (Ky. Stats., sec. 1649b 1 et seq.).
6. Criminal Law. — Undertaker's testimony in homicide case regarding undisputed location of wounds, shown also by doctor's testimony, held not objectionable because undertaker was not qualified to testify concerning points of entrance and exit.
Although points of entrance and exit of wounds are sometimes difficult to determine, and it would be better for witness to describe conditions, nevertheless, where witness confines himself to general statements of entrance and exit and is subjected to cross-examination, it is a matter of weight of evidence rather than its admissibility.
7. Homicide. — Cross-examination of wife charged with killing husband, showing that title to property was in her name, held competent, as negativing reason for husband's wanting to be rid of wife.
It appeared that wife on cross-examination was required to tell that title to property which she and her husband had accumulated was in her name, and that wife explained that some of this property was her own individual estate, with acquisition of which husband had had little or nothing to do.
8. Criminal Law. — Refusing instruction that jury should give affidavit same effect as if affiants were present and testifying held not error, where court stated that affiants, if present, would testify according to affidavit.
Court said to jury that, if certain absent witnesses were present in court and sworn and testifying before jury, they would testify as was stated in affidavit, which court then read, concluding with admonition that statements therein should be considered as testimony of absent witnesses.
9. Criminal Law. — Generally, as regards evidence affecting character of defendant as witness, court should admonish jury not to regard it as substantive evidence.
10. Criminal Law. — As regards mere witness, as distinguished from defendant, court may on its own motion and should, if requested, admonish jury regarding purpose of impeaching evidence.
11. Criminal Law. — Ordinarily, even when witness is defendant, omitting unrequested admonition concerning purpose of impeaching evidence is harmless, when no request is made, and court's attention is not directed to omission.
12. Criminal Law. — Reasonable time to be granted for argument is within judge's discretion, exercise of which will be upheld, unless abused.
13. Criminal Law. — Allowing seventy-two minutes for defense argument in murder prosecution, where facts were not complicated, held not abuse of discretion.
It appears that defense requested one and one-half hours for argument, and court granted one hour and then extended it to seventy-two minutes, and that much of evidence related to collateral matters, and that on essential matters there were only a few witnesses, and their testimony was not extensive, nor were the facts complicated.
14. Criminal Law. — In murder cases, where jury has become separated, state must clearly show absence of opportunity for improper influences.
15. Criminal Law. — Finding in murder prosecution that jury did not become separated, so that opportunity might exist for improper influences, held supported.
16. Criminal Law. — Where wife was charged with killing husband and court was liberal in admitting evidence of husband's adulterous relations, refusing new trial because of newly discovered evidence of husband's adulterous conduct held not error.
It was contended that newly discovered evidence in question was not actually cumulative, inasmuch as reputation of defense witnesses had been attacked, and another witness had been shown to have taken an active, friendly interest in behalf of defendant, and thereby his evidence was weakened.
17. Criminal Law. — Error in not defining term "sudden affray" in murder prosecution held harmless.
Appeal from Harlan Circuit Court.
J.O. BAKER, E.H. JOHNSON, R.L. POPE and J.D. POPE for appellant.
BAILEY P. WOOTTON, Attorney General, H. HAMILTON RICE, Assistant Attorney General, and J.S. FORESTER and ZEB STEWART for appellee.
OPINION OF THE COURT BY STANLEY, COMMISSIONER.Affirming.
The appellant, Katherine Shorter, has been sentenced to the penitentiary for twenty-one years for killing her husband. The claim of the defendant that the deceased had been associating with lewd women and for some time had been very cruel to her is sustained by the evidence. She had spent most of the time for three years and more in Lexington for the purpose of caring for her younger son, who was in college there. Another son also lived there. Every two or three weeks she would return to her home in Harlan, and she and the student son would spend vacation periods there. The arrangement was agreeable to the husband, who supported his wife and son. Mrs. Shorter concluded in February, preceding the killing in May, that she would remain with her husband, and went home to stay. It appears that he did not want her there, and tried to make her leave as she was interfering with his adulterous living. There is no denial of the defendant's evidence that time and again he cursed and struck her and threatened to kill her.
On a Sunday in May, 1932, Mrs. Shorter left Harlan about noon for Lexington. On the train she concluded she would need her coat, and at Pineville took another train back to Harlan, where she arrived late in the afternoon. Efforts to locate her husband when she did not find him at home were unavailing. She was working in the garden when he came home about 7 o'clock the next morning. It is pretty well shown that he had spent the night with some lewd women and was drinking. She went into the house a few moments after he arrived, and some of the neighbors testified to hearing an argument between them, followed by the shooting. One testified that she heard him say, "Please don't kill me." Another that he called her a vile name and then after the shooting started he said, "Oh, Kitty, you have done killed me;" and she said, "Shut up, Shorter, you made me do it." Another witness stated that she said, "You made me do it, you drove me to it." Another testified that a second or so after the firing ceased she said two or three times, "You are choking me." The accused left the house and surrendered to a deputy sheriff, telling him she had killed her husband. She also said at the jail, "The Lord only knows why I killed him; you could not make anybody believe I done that;" and later in the day she said she did not know why she had put it off these many years. The older son, William, testified that she and his father "never did get along so good;" that she was "all the time after him;" that in Lexington two or three weeks before his father was killed she said that, "If he don't do better she would have to kill him." He also testified that the afternoon of the killing he asked her if his father saw her with the gun, and she said, "She didn't think he ever saw the gun before she started shooting;" and "I said, `You had it behind you, didn't you?'" and she said, "Yes, she did." The deceased was shot five or six times in the right side and back of his head and somewhere about the shoulders. Bullet holes in the wall of the room were scattered about, but in the same general direction.
The defendant's evidence is that when she went into the house and asked if he wanted some breakfast, he told her he did not, and when she asked where he had spent the night he violently cursed her, but did say that he was at the pumphouse most of the night. He abused her for not having gone on to Lexington, and told her she would have to go there and stay, and when she replied that she would not stay, he struck her a time or two and knocked her across the end of the davenport and kicked her. She then got around him and reached her hand under the mattress of the bed to get hold of his pistol to hide it, believing that in his drunken, raving condition he would shoot her. She got the weapon, and, as she was passing him to go in the next room, he said, "`Are you going?' and I said, `No;' and he struck me again and grabbed me by the throat with his left hand and choked me and said, `I will have to kill you now and be done with you,'" and continued to curse her viciously. She then raised the pistol and fired because she was trying to save her life and did not know anything else to do. He was a large, strong man. She did not remember anything after the first shot. It seems that the pistol was automatic so that it continued in action by simply holding the trigger. The defendant is corroborated in her statements as to what occurred by two absent witnesses, whose evidence was produced by affidavit as to what they would testify; that is, to the effect that during the time of the shooting they heard her cry out, "Will, quit choking me." A doctor who examined her several days after the homicide found several contusions upon her body. Contradicting his older brother, Noel Shorter, who saw more of his parents, testified to a series of incidents of cruelty and threats by his father to kill his mother, especially when he was drunk. A neighbor testified that a week before the tragedy Shorter cursed his wife and said the only way he could be rid of her was to shoot her brains...
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