Terrell v. Commonwealth

• Decision Date: 28 June 1877
• Parties: Terrell v. Commonwealth.
• Court: Kentucky Court of Appeals

Page 246

76 Ky. 246

Terrell v. Commonwealth.

Court of Appeals of Kentucky.

June 28, 1877.

APPEAL FROM BOONE CRIMINAL COURT.

J. G. CARLISLE FOR APPELLANT.

D. S. HOUNSHELL AND BEN. M. PIATT ON SAME SIDE.

THOS. E. MOSS, ATTORNEY-GENERAL, FOR APPELLEE.

W. MONTFORT, COMMONWEALTH'S ATTORNEY, ON SAME SIDE.

JUDGE COFER DELIVERED THE OPINION OF THE COURT.

The appellant was indicted in the Kenton Criminal Court, at its June Term, 1874, for the murder of Harvey Myers.

At the same term he filed his petition therefor, and the venue was changed to the county of Boone, where a trial was had at the March Term, 1877, which resulted in a verdict and judgment convicting him of the crime of voluntary manslaughter. This appeal is prosecuted to obtain a reversal of that judgment.

At the October Term, 1874, the appellant moved to set aside the indictment, mainly on the ground that the grand jurors by whom it was found were not selected by commissioners, as required by statute, and were summoned by a sheriff who was not sworn, as required by law.

The court overruled the motion, and the appellant excepted. That decision was rendered while the Criminal Code of 1854 was in force. Under its provisions this court had no power to reverse a judgment of conviction for error in overruling a motion to set aside an indictment. (Sec. 334; 17 B. Monroe, 316, 408.)

But it is contended that we may now reverse for such error, whether committed before or after January 1, 1877, when the present Code went into effect.

Section 340 of the Code of 1877 provides, "A judgment of conviction shall be reversed for any error of law, to the defendant's prejudice, appearing in the record."

Sections 280 and 281 read as follows:

"SEC. 280. Upon the trial of criminal or penal prosecutions, either party may except to any decision of the court by which the substantial rights of such party are prejudiced, subject to the restrictions in the next section.

"SEC. 281. The decisions of the court upon challenges to the panel, and for cause, upon motions to set aside an indictment, and upon motions for new trials, shall not be subject to exception."

Construing these sections 340 and 280 and 281 together, it seems to us clear that we have no power under the present Code to reverse on the appeal of either party for error in decisions upon challenges to the panel, or for cause, or upon motions to set aside an indictment, or for a new trial.

The language of section 340 embraces all such errors; but unless that language is held to be modified by section 281, sections 280 and 281 would seem to be entirely superfluous. They were wholly unnecessary unless the purpose was to except errors in decisions, upon the matters enumerated, from the revisory power of this court.

It is next objected that the court erred in admitting important evidence against the appellant, notwithstanding his objection and exception.

The Commonwealth introduced a witness who swore that about six or eight weeks before Myers was killed he was in the office of Marshall & Piatt; that appellant had a desk in the room, and while he (witness) was talking to Piatt at one end of the room he heard the appellant talking to Winston at the other end; that he did not hear all that was said, but heard the appellant, in an excited and angry manner, say, "The dirty dog, the dirty hound; I despise him; I could spit in his face, and I will do it;" and that he also said "that Myers, that Myers," using the latter words in connection with the former.

Whether mere fragments of a conversation alleged to have been had with a person charged with crime, only a part of which was heard by the witness, are admissible in evidence against him must depend upon the circumstances of each case, and the object for which the declarations are offered.

If the object of proving the declarations be, as in this case to prove malice, or that the prisoner commenced the conflict, any previous declarations which tend to prove ill will toward the deceased, or that the prisoner contemplated an attack upon him, are competent, although made in a conversation only a part of which was heard by the witness. Nothing that could have been said, short of an absolute retraction, could impair the force of declarations alleged to have been made by the appellant, and we are of the opinion that evidence of the declarations already recited was properly admitted.

But the witness was permitted to make this further statement, "Terrell also said in that conversation, `he ordered me out of his office because I was not armed,' or, `he was afraid to order me out of his office because I was armed;' I can not now remember which remark he made, but it was one or the other."

This statement of the witness should not have been allowed to go to the jury. There is a great difference between the character of the two declarations, only one of which was stated to have been made by the appellant. In one the deceased would seem to have been very clearly in fault, while in the other the fault was appellant's.

The witness could not state, and did not even give his impression, as to which expression was used. This circumstance, however, probably prevented the evidence of these declarations from having any particular weight with the jury, and we should not be inclined to reverse the judgment, because it was admitted.

The appellant introduced Duncan as a witness, and offered to prove that a short time before the killing of the deceased, he called on the witness, who was commonwealth's attorney for the district, and stated to him that he had received information that his life had been threatened (not however by the deceased), and inquired whether, under the circumstances, he had a right to carry arms, and that the witness said to him if such threats had been made he had a right to carry arms for his defense. The Commonwealth objected to the evidence, and the objection was sustained.

Myers was shot with a pistol which the appellant was carrying on his person at the time, and the prosecution relied on that fact as evidence of malice, and his counsel contend that his declarations to Duncan were admissible to show that he carried arms in good faith to defend himself.

If it had been proven by the prosecution that he was armed at the time he made the declarations to the witness, what he said as to the cause that led him to carry arms would probably have been admissible as part of the res gestæ. But no such evidence was offered, and the appellant's declarations, made an indefinite time before the killing, could not be made evidence to explain the carrying of arms on the day on which it occurred.

The court, after instructing the jury in the law of murder and voluntary manslaughter, gave the following:

"No. 3. The court instructs the jury that if they shall believe, beyond a reasonable doubt, from all the evidence before them, that the accused, in Kenton County, at any time before the finding of this indictment, in a sudden affray, and in sudden heat and passion, without previous malice, and not in his necessary or apparently necessary self-defense, and not in an effort to keep the public peace, with a pistol loaded with powder and a leaden ball or other hard substance, then and there by him held in his hand, did shoot and wound one Harvey Myers, from the effects of which shooting and wounding the said Myers then and there presently died, they should find him guilty of involuntary manslaughter, and affix his punishment at a confinement in the penitentiary for any period of time of not less than one nor more than six years."

This instruction was evidently given in view of the provisions of section 2, article 4, chapter 29 of the General Statutes, which reads as follows:

"Any person who shall willfully strike, stab, thrust, or shoot another, not designing thereby to produce or cause his death, and which is not done in self-defense, or in an attempt to keep and preserve the peace, or in the lawful arrest or attempt to arrest a person charged with felony or misdemeanor, or in doing any other legal act, so that the person struck, stabbed, thrust, or shot, shall die thereof in six months next thereafter, shall be confined in the penitentiary not less than one nor more than six years. But this section shall not be construed to change the law of malice in respect to any other offense."

The foregoing instruction was more favorable to the appellant than the law warranted. It wholly omitted to submit to the jury the question whether he may not have designed to kill Myers, in which case he was not entitled to any benefit under the statute supra.

That the crime denounced in the statute was inaccurately called involuntary manslaughter in the instruction, can not have prejudiced his substantial rights, and the giving of the instruction furnishes no ground for reversing the judgment.^*

The appellant asked an instruction which, as modified by the court and given, reads as follows:

"No. 2. The court instructs the jury that if they shall believe from the evidence that the defendant, W. G. Terrell, at the time and place that he shot and killed Myers, had reasonable grounds to believe, and did believe, that Myers was then and there about to take his life, or to inflict on his person some great bodily harm, that Terrell had the right to make use of any means then at his command that were necessary, or apparently necessary, to avert such impending or apparently impending danger; and if they shall believe, from the evidence, that Terrell, when he fired the shot that killed Myers, had reasonable grounds to believe, and did believe, that Myers was then and there about, in any manner, to take his life,...