Thomas v. Commonwealth

• Decision Date: 03 October 1919
• Citation: 214 S.W. 929,185 Ky. 226
• Parties: THOMAS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

214 S.W. 929

185 Ky. 226

THOMAS v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 3, 1919

Appeal from Circuit Court, Harlan County.

Delbert Thomas was convicted of willful murder, and he appeals. Affirmed.

Hall &amp Jones, of Harlan, for appellant.

Chas H. Morris, Atty. Gen., and Overton S. Hogan, Asst. Atty Gen., for the Commonwealth.

QUIN J.

Appellant was indicted for the willful murder of Richard Johnson, and upon a trial was found guilty, and his punishment fixed at death. He was employed in the mines at Benham, Ky. in the capacity of a motorman, and on Sunday, April 6, 1919, the day of the killing, he had been with his wife to visit some relatives in the community. They started for their home about 6 o'clock in the evening. Appellant stopped at the home of some foreigners and purchased four bottles of a substance called "julep"--by some referred to as wine or cider. He continued his way towards home, but before reaching the house he stopped at a hydrant near by and talked to his brother-in-law, and they drank some of the liquor. Appellant then went home, where his wife served supper on the porch. After supper he went into the house and came out with a shotgun, and said he was going over to inquire about his brother. He shot the gun once or twice in the yard, and an effort was made to get the gun from him. He called at his father's home, and it was again attempted to get the gun and this they succeeded in doing after struggling for an hour or more. In the meantime the appellant had been consuming more of the "julep" and had given of same to different friends. Deprived of his gun, he endeavored to secure his brother-in-law's pistol, and, this being refused him, he upset practically everything in his brother-in-law's house, in his search for a weapon. Appellant and his brother-in-law lived in the same building, but in separate apartments. After he had been relieved of his gun, he got into an altercation with his sister's husband, and tried to cut him with a knife, and when his sister endeavored to interfere he grabbed her by the hair and handled her rather roughly. As soon as the brother-in-law could extricate himself from the appellant, he and his wife left home.

Dan Cain, who lived near appellant, had been to a church in the neighborhood. Returning home, he heard a great deal of noise in the direction of the Thomas house, such as the breaking of glass and the screams of a woman. Being a friend of the family and not desiring to become involved in what he thought was a family disturbance, he decided he would report the matter to an officer. After a time Cain located decedent, Richard Johnson, a deputy sheriff, and accompanied him to the scene of the trouble. It was dark at the time. Cain testified that as they approached the Thomas house some one met them near a shed a short distance from the house; that Johnson started to speak, but witness did not understand what he said, because at that time he (Johnson) was struck with some blunt instrument and fell. Being unarmed, Cain fled. While fleeing, he heard something strike on a nearby rock, as if it had been thrown at him. He stopped and looked back, saw some one bending over Johnson, and, fearful that he might be killed, he continued his flight and was twice fired upon. As soon as possible he summoned a number of men, and they returned to the place of the shooting. After much searching they found the dead body of Johnson. Thomas was nowhere to be seen.

Thomas, after he had killed Johnson, went to the home of his father, and also to one or two neighbors, and at each of these places he endeavored to get some cartridges. This was somewhere near midnight. He offered one of these persons pay for the cartridges. When asked what he wanted with them, he replied that he had killed a fellow, had killed Johnson; and, when refused the cartridges, he offered to give him a watch for some shells. The watch was that of Johnson. Appellant at the time, not only had Johnson's watch, but he had his pistol, badge, and money. Appellant stated to one of the witnesses something about not liking Johnson, or Johnson's not liking him. Appellant went to the home of a neighbor; while the latter was asleep, he got nearly a whole box of cartridges off the mantel; this was about midnight. Early the next morning appellant stated to another witness that he guessed there would be two fellows that never would arrest any one else.

Appellant was next seen that same morning on a train going in the direction of Pineville. There he met up with two officers, and in attempting to arrest him one of the officers was killed and the other wounded. Later during the day, which was the day following the tragedy, he was seen by the men who were looking for him, and when they called upon him to surrender he sought shelter behind a pile of ties. Many shots were exchanged between appellant and members of the posse; he finally surrendered and was taken to jail. He still had Johnson's watch and pistol and some of his money, and to some of these men he stated he had killed Johnson; to others he said he did not know who had been killed. Appellant did not testify upon the trial.

Counsel for appellant has asked that the case be reversed, because the verdict is not authorized by the evidence, and because of improper instructions and misconduct of counsel for the commonwealth in stating the case to the jury. We will take these in their inverse order. The commonwealth's attorney in his opening statement referred to the fact that appellant, besides killing Johnson, had killed another man and wounded a third; and it is insisted this argument was highly prejudicial, and such as entitled appellant to a new trial.

The general rule is that, on the prosecution of a particular crime, evidence which in any manner shows or tends to show that accused has committed another crime, wholly...