Taylor v. Commonwealth

• Decision Date: 10 November 1916
• Citation: 188 S.W. 1087,172 Ky. 136
• Parties: TAYLOR v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

188 S.W. 1087

172 Ky. 136

TAYLOR v. COMMONWEALTH.

Court of Appeals of Kentucky.

November 10, 1916

Appeal from Circuit Court, Whitley County.

J. H Taylor was convicted of murder, and appeals. Reversed and remanded.

W. R Henry, of Williamsburg, and R. S. Rose, of Harlan, for appellant.

M. M Logan, Atty. Gen., Overton S. Hogan, Asst. Atty. Gen., and J. B. Snyder, of Williamsburg, for the Commonwealth.

SETTLE J.

The appellant, J. H. Taylor, was tried in the Whitley circuit court under an indictment charging him with the murder of Frank Sumner. The jury by their verdict found him guilty of the crime charged, and fixed his punishment at confinement in the penitentiary for life. This appeal is prosecuted by him from the judgment entered upon that verdict.

The killing occurred at night on August 6, 1915, at a colored schoolhouse near the city of Somerset in the county of Pulaski, and but a day or two before the primary election at which candidates for circuit judge, commonwealth's attorney, and perhaps other offices were nominated. Judge Bethurum and one Kennedy were contestants for the Republican nomination for the office of circuit judge. Appellant was a supporter of Bethurum and decedent of Kennedy. Bethurum was at the schoolhouse and made a speech on the occasion referred to, but his opponent, Kennedy, was absent. Speeches were also made by others at the meeting. Sumner seems to have been somewhat intoxicated, and was at times disorderly during the speaking, in announcing in a loud voice his preference of Kennedy in the race for nomination for circuit judge.

According to appellant's own testimony, while a colored orator was addressing the crowd he left his seat in the building, intending to go out into the yard, but upon getting just outside of the door stopped to hear an anecdote being related by the speaker. At that time the decedent was standing in or just outside of the door with his hands, or one of them, upon the frame of the door. Upon seeing appellant he said to him:

"You are the son of a b___ that wrote those lies on Judge Jasper and had them published in the Somerset paper."

Jasper was then or had been county judge of Pulaski county, and the decedent was a tenant upon his farm. According to the further testimony of appellant, the decedent, in addition to the words stated, said to him, "Take your hand out of your pocket," or "Don't place your hands about your pockets. I am not scared of you." That the decedent then attempted to place his hand in one of his pockets and started toward him, whereupon he (appellant) drew his pistol and fired four shots at the decedent, only one of which entered the body of the decedent, who immediately fell and quickly died. It was admitted by the appellant on cross-examination that he carried to the speaking in his right front pants pocket the pistol with which the killing was done, and that when he left the schoolhouse and went out into the yard he had his hand in that pocket and upon the pistol. He claimed, however, that he shot the decedent because he thought he was in danger of death or great bodily harm at his hands.

Several of the witnesses introduced for the commonwealth testified that they heard the decedent charge appellant with the authorship of the publication attacking Judge Jasper, and some of them heard him tell appellant to take his hand from his pocket, that he was not afraid of him, but they all testified that, though the decedent removed his hands from the door framing, he did not put either of them in his pocket or attempt to do so at the time of the shooting, and that he made no attempt to advance upon the appellant. No weapon was found upon the person of the decedent. It also appears from the evidence that appellant was unacquainted with the decedent prior to the shooting.

One of the grounds urged by the appellant for a reversal is that the trial court erred in changing the venue of the case from Pulaski to Whitley county. This complaint cannot be considered, as it appears from the record that appellant agreed to the change of venue. This is shown by the following order:

"This day came the commonwealth's attorney and produced and filed his petition, supported by affidavits of William Eller and G. P. Myers and others, all of which were noted of record, and moved the court for a change of venue in the above-styled prosecution to some county other than Pulaski or any county in the Twenty-Ninth judicial district, and the court being advised and defendant being present in court in person and by attorney and not objecting and agreeing thereto, it is ordered and adjudged that the above-styled cause be and the same is now transferred to Whitley county for trial, and the clerk of this court is ordered and directed to transmit all the original records in this prosecution, together with a copy of this order, to the clerk of the Whitley circuit court at once. * * *"

Obviously appellant cannot be permitted to repudiate the agreement thus made in open court.

Appellant also complains that the court erred in permitting from the commonwealth, through certain witnesses introduced for that purpose, an attack upon his character for veracity. This complaint is also without merit. As appellant testified in his own behalf, the evidence of the commonwealth referred to, introduced in rebuttal, was properly admitted. In the recent case of Bennett v. Commonwealth, 171 Ky. 63, 186 S.W. 933, in passing upon the admissibility of such evidence, we said:

"Where the defendant in a criminal prosecution does not testify as a witness in the case, as allowed by section 223, Criminal Code, evidence attacking his veracity is not admissible; nor will evidence attacking his moral character be admissible when he has not testified as a witness, unless he has first introduced other witnesses to show his moral character to be good. Hansford v. Commonwealth, 170 Ky. 700 . Where, however, the defendant testifies as a witness in his own behalf, he is then to be treated as any other witness, and his general moral character, as well as his character for truth and veracity, may be put in issue--i. e., attacked--by the commonwealth, although particular acts, whether good or bad, cannot be proved. 2 Roberson's Ky. Crim. Law & Procedure, § 972; Trusty v. Commonwealth 19 Ky. Law Rep. 706; McDonald v. Commonwealth, 86 Ky. 10 [4 S.W. 687, 9 Ky. Law Rep. 230]; Lockard v. Commonwealth, 87 Ky. 201 [8 S.W. 266, 10 Ky. Law Rep. 102]; Pace v. Commonwealth, 89 Ky. 204 [12 S.W. 271, 11 Ky. Law Rep. 407]. As in this case appellant testified in his own behalf, the commonwealth was properly allowed to introduce in rebuttal for the sole purpose of impeaching and discrediting him as a witness, the evidence showing his bad moral character and want of veracity."

The only inquiry made was as to the reputation of the appellant for truth and veracity in the community where he lived.

Appellant also complains that the trial court should have granted him a continuance of the case. The record fails to show that he made a motion for a continuance, but does show that he announced himself ready for trial when the case was called. In the absence of a showing by the record that such a motion was made, and the grounds therefor, this complaint will not be considered.

He also makes the complaint that the trial court erred in limiting the argument to the jury to 40 minutes on a side, but it appears from the record that this alleged error was first brought to the attention of the circuit court in the motion and grounds for a new trial, for which reason it could not have been considered by that court as an available ground for a new trial, and cannot be regarded by this court as a ground for reversing the judgment appealed from. In order for it to be available for either of these purposes the error, if committed as alleged, must have been excepted to by the accused at the time of its commission, which was not done. The record of the trial nowhere shows that the court placed any limit upon the argument, or that appellant asked for any given time to argue the case, or that he took an exception to any ruling of the court in the matter of limiting the argument or refusing further time for argument. For the above reasons the complaint will not be considered by us.

What has been said of the complaint last mentioned applies with equal force to that of appellant in regard to a further alleged error of the trial court in permitting certain alleged improper remarks from counsel for the commonwealth in argument to the jury. As neither the language of the counsel objected to nor the ruling of the court in permitting it was objected or excepted to by appellant at the time it was made and the ruling of the court...