Stevens v. Commonwealth

• Decision Date: 07 December 1906
• Citation: 98 S.W. 284,124 Ky. 32
• Parties: STEVENS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

98 S.W. 284

124 Ky. 32

STEVENS v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 7, 1906

Appeal from Circuit Court, Ohio County.

"To be officially reported."

R. Flem Stevens was convicted of murder, and he appeals. Reversed and remanded.

H. P Taylor, S. A. Anderson, M. L. Heavrin, for appellant.

N. B Hays, C. H. Morris, and Morris & South, for the Commonwealth.

SETTLE J.

The appellant, R. Flem Stevens, was indicted and tried in the Ohio circuit court for the murder of W. L. Grawbarger. The jury by their verdict found him guilty of voluntary manslaughter, and fixed his punishment at two years' confinement in the penitentiary. Appellant was refused a new trial in the lower court, and now asks of this court a reversal of the judgment appealed from.

Appellant at the time of the homicide, was marshal of the town of McHenry, and having been sent for by a barber to remove deceased from the vicinity of his shop on account of his drunken and disorderly conduct, he went to the shop in question and found deceased in front of it and near it. Discovering that he was drunk and boisterous, appellant placed him under arrest and started with him to the McHenry railroad depot, where there was a light, intending after reaching the depot to send for the police judge, that he might immediately issue a warrant against deceased for his misconduct, and make some disposition of the case. Upon reaching the depot deceased, who, down to that time, had quietly submitted to the arrest, refused to enter the building, and thereupon he and appellant got into an altercation, during which the latter shot and killed him. The evidence as to the difficulty was very conflicting. Four witnesses, Hobdy, Maddox, and the two Turners, introduced by the commonwealth, claimed to have seen it. According to their testimony, when appellant opened the door of the depot building, deceased objected to entering, whereupon appellant knocked him down with a pistol, or billy, shot him twice while down, again in the act of rising, then twice more when he fell upon the floor of the east shed of the depot. On the other hand, appellant testified in his own behalf that, upon reaching the depot door, deceased, who was a much larger and stronger man than he, with his left hand grasped appellant's right hand, and holding it as if in a vise, threw his right hand and arm around appellant's neck, thereby pressing his head against deceased's breast, and began to struggle, as if to throw appellant to the floor and kill him, or do him great bodily harm, in view of which, and of threats that deceased had previously made against him, appellant got his pistol from his pocket with his left hand, and shot deceased twice, somewhere in the back, which caused the latter to release his hold of him and to fall down, but immediately getting on his feet deceased advanced toward appellant with the remark. "God damn you, I have not got enough of you yet," and again seized and bore down on him much as he had done before; whereupon appellant, changing the pistol from his left to his right hand, shot deceased three times in front, when he fell to the floor and died. In the main, appellant's version of the homicide was corroborated by Dott and Nall, railroad employés, then in the depot, Gans and Toll who were across the street, and, in some measure, by Miss Pirtle, Bishop, and Cope, who were further away. In addition to the testimony of the witnesses named, there was some further proof that deceased had, prior to his arrest, in effect, said he would not be arrested by appellant, and that the latter had, in substance, declared he would use his pistol in arresting a man like deceased, or of his kind. Evidence was also introduced by the defense to show that, at the time of the homicide, which occurred at night and under the depot shed, there was a nine-day moon, and that the moonlight was insufficient for the commonwealth's witnesses to see what was done by the parties engaged in the conflict. On the other hand, the testimony of the commonwealth's eyewitnesses to the homicide, and others, was that the light from the moon was sufficient to enable them to see what took place. From all the evidence the jury reached the conclusion that the homicide was not justifiable. As there was some evidence upon which to base the verdict, we are not at liberty to declare that it was unauthorized, nor have we the right to set it aside upon the ground that it was flagrantly against the evidence.

It is insisted for appellant that the trial court erred in refusing to allow him to prove by certain witnesses, of whom the question was asked, that the reputation of deceased among the peace officers of the county was that of a dangerous man. We think the court ruled correctly in excluding such testimony. It was not proper to show what deceased's reputation in the particular named was among peace officers, any more than any other class. It was, however, competent to show that such was his reputation among his acquaintances generally in the community in which he lived, and this appellant was permitted to prove, and did prove, by quite a number of witnesses, including peace officers.

It is also complained that the trial court was guilty of misconduct during the trial, in that he permitted the widow of deceased who sat in the courtroom during the taking of testimony, to weep in the presence of the jury, and cry out at appellant, saying: "Flem Stevens, why did not you kill me or my sweet baby, instead of my husband, who died with a smile on his face?" This outbreak on the part of Mrs. Grawbarger was nothing more than an uncontrollable manifestation of her grief, which could not have been anticipated by the court, or the officers of the court, then present. Moreover, it is admitted by counsel that she was quickly required by the court to withdraw from the courtroom. The episode, though ill-timed and improper, was such as frequently occurs, and it could not have been prevented by the court except by an order made at the beginning of the trial refusing the widow the right to enter or remain in the courtroom during its progress, which would have been an unusual, as well as a harsh and unjustifiable, requirement that appellant himself did not care to demand. It does not appear from the record that he or his counsel objected to the conduct or statement of Mrs. Grawbarger, or that they excepted...