Thomas v. Commonwealth

• Citation: 245 S.W. 164,196 Ky. 539
• Parties: THOMAS v. COMMONWEALTH.
• Decision Date: 21 November 1922
• Court: Court of Appeals of Kentucky

245 S.W. 164

196 Ky. 539

THOMAS v. COMMONWEALTH.

Court of Appeals of Kentucky.

November 21, 1922

Appeal from Circuit Court, Jefferson County, Criminal Branch Criminal Division.

Frank Thomas was convicted of murder, and he appeals. Affirmed.

H. M Denton, of Louisville, for appellant.

Charles I. Dawson, Atty. Gen., and Thos. B. McGregor, Asst. Atty Gen., for the Commonwealth.

HURT C.J.

The appellant, Frank Thomas, was indicted for the crime of willful murder, committed, as was alleged, by shooting and thereby killing Lee J. Arbegust, on the 26th day of November, 1921. He was tried and found guilty by the jury, and the penalty for the crime fixed at death. The motion to set aside the verdict and grant a new trial being overruled, a judgment was rendered in conformity to the verdict, and adjudging that he suffer the penalty, as by law provided in such cases. He has appealed. The ground upon which a reversal is urged is that the trial court committed three errors, each of which was prejudicial to his substantial rights, as follows: (1) Overruling a motion for a continuance; (2) misconduct of the commonwealth's attorney in closing argument to the jury; (3) denying him a new trial upon the ground of newly discovered evidence. These grounds will be considered in their order.

(a) The crime for which Thomas was convicted was committed by him in Jefferson county in a community in which he had resided for many years, and where he was well acquainted with the citizenship and it was well acquainted with him, and at a place near the corporate limits of the city of Louisville, wherein he was tried. The time of the commission of the crime, as was stated, was on November 26, 1921. The indictment was returned by the grand jury on December 7th thereafter, and on the following day the accused was arraigned and a plea of not guilty entered, counsel assigned for his defense, and the indictment set for trial on January 23, 1922. Forty-six days thus intervened from the time of the assignment of the prosecution for trial until the day of the trial. Upon the calling of the action for trial on January 23d, and the commonwealth having announced ready to proceed, the accused moved for a continuance of the cause, which motion was overruled, and this is the denial of a continuance of which complaint is made. The accused, in support of his motion for a continuance, filed an affidavit which set out but one reason for the continuance, and that was the absence of one witness, who, the affidavit stated, resided in Jefferson county, at Valley View. Although there was no intimation in the affidavit that the witness had not been sooner known or that what the witness would testify had not been sooner learned, a subp na had not been issued for him until the 19th day of January, requiring his attendance on the 23d, and the sheriff had returned that he had not been able to find the witness, presumably from the want of time. Although this was apparent want of diligence in obtaining the presence of a witness, the court, before overruling a motion for a continuance, required the commonwealth's attorney to agree that the affidavit might be read as the deposition of the witness, and the affidavit was read to the jury as the deposition of the witness, under the admonition that the jury should accept and consider the statement as the testimony of the witness, as though the witness was before it in person and made such statements under oath. In the light of section 189 of the Criminal Code of Practice and the various decisions of this court construing this section, it is impossible to see wherein the court abused its discretion in overruling the motion for a continuance, as well as considering the facts which the witness would testify to, and the further fact that there were more than 20 witnesses from the same vicinity present in court.

(b) The misconduct attributed to the commonwealth's attorney was that in his closing argument to the jury, among other things, he said:

"It is argued that the family is seeking vengeance. That is as fallacious as the rest of his argument, for, if the family were not here listening to the trial, it would have been argued by astute counsel, as I have heard before that the family is not interested and would rather that the jury bring in a life sentence than a death sentence, and so lawyers are used to that character and class of argument. He addresses himself principally against the death penalty, as to the justice of the death penalty, even where the law and evidence justify it. Such arguments should have been made to the Legislature long ago. You have sworn to try this case on the law and evidence, and as to the death penalty you were carefully questioned, each one of you, in regard to your views on that subject even as to the age of the defendant as bearing on that question. One of the jurors which had been accepted, you will remember, when some one suggested the age of the defendant, stated to the court openly in the presence of the jury that he wished to be excused on account of the age of the defendant; that he did not believe in the death penalty where the defendant was an elderly man."

To this statement the attorney for the accused objected, stating that the court had admonished the jury not to consider anything said by a juror upon his examination, and the court then reiterated the admonition by saying to the jury that it should not consider anything that any juror may have said when questioned concerning his qualifications or views. The objection was again made and an exception reserved to the action of the court. If the reference by the commonwealth's attorney, in the manner in which he did it, to the statement by a juror of his views in regard to the infliction of capital punishment, was erroneous, and it was not cured by the ruling of the court thereon, it was not prejudicial, since the juror referred to asked to be excused, because he did not believe in capital punishment when applied to an aged man such as the accused. The accused did not ask that the jury should be discharged because of the prejudicial effect he thought such statement had, and hence the court did for him all that it was requested to do.

The other language made use of by the commonwealth's attorney which is complained of was not objected to by the accused at the time, and after a verdict it is too late to make an objection. With reference to such a matter, if a party sits silent and takes his chances with the jury, and does not call the attention of the court to the improper argument, he should not be allowed to make the objection afterwards. If improper argument is not objected to at the time it is made, it is considered that the objection is waived in every case. O'Brien v. Com., 89 Ky. 354, 12 S.W. 471.

It has also been frequently held that, if the attention of the court is called to an improper argument, and the jury is admonished in regard to it, a reversal of the judgment will not be had unless it appears that the argument is so prejudicial under the circumstances of the case that the admonition of the court will not cure it. Hilton v. Com., 16 S.W. 826, 13 Ky. Law Rep. 158; Cotrel v. Com., 17 S.W. 149, 13 Ky. Law Rep. 305; Clark v. Com., 111 Ky. 443, 63 S.W. 740, 23 Ky. Law Rep. 1029.

Neither will a judgment be reversed on account of an improper argument by the commonwealth's attorney, if the trial is in other respects conducted fairly and impartially, and no other verdict could have been rendered by the jury than was rendered. Hourigan v. Com., 94 Ky. 520, 23 S.W. 355, 15 Ky. Law Rep. 265; Ray v. Com., 43 S.W. 221, 19 Ky. Law Rep. 1217.

The improper argument, which was not objected to at the time, but is now complained of, was directed by the commonwealth's attorney to the weight to be given to the testimony of the absent witness, which was embraced in the affidavit for a continuance, and which was referred to by him substantially as merely an affidavit made by the accused as to what a witness would depose who was not before the jury, and thereby intimating that, if the witness was present, he would not make the statement which the affidavit averred would be made by him. If such construction can be justly placed upon the language of the commonwealth's attorney, it was a highly improper argument, because the motion for a continuance on account of the absence of the witness was overruled upon the agreement of the commonwealth's attorney that the witness would depose, if present, to the truth of the facts therein stated, and further because the court had directed the jury to receive the affidavit as the evidence of the witness as though made by the witness before it, and it is not necessary to say that an argument to a jury contrary to the instruction or admonition of the court to it is always improper. Although the argument was not objected to by the accused, the court, doubtless realizing the impropriety of the argument, again admonished the jury that it should consider the facts stated in the affidavit, which it was said the witness would make as if made by the witness in person before it. This, we think, was sufficient to cure any prejudice created by the argument, even if it had been objected to, and besides the facts of the homicide show it to have been so premeditated and indefensible, and the evidence supporting unsoundness of mind on the part of the accused so negligible that the jury would not have been warranted in making any other verdict than it did, and hence the argument was in no wise prejudicial.

(c) The contention that the trial court erred to the prejudice of the accused in denying him a new trial, upon the ground that new evidence had been discovered in his behalf after the trial makes proper and necessary the...