Warner v. Commonwealth
| Decision Date | 30 October 1931 |
| Citation | 241 Ky. 118 |
| Parties | Warner v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
2. Criminal Law. — Whether evidence justifies conviction necessarily depends on facts of each case.
3. Homicide. — Whenever testimony convinces reasonably prudent person to degree required by law that defendant committed punishable homicide, conviction is not influenced by passion and prejudice so as to be flagrantly against evidence.
4. Criminal Law. — Judge must weigh testimony and determine whether it authorizes submitting case, and whether conviction is flagrantly against evidence.
5. Criminal Law. — Rulings on questions whether testimony authorizes submitting case, and whether conviction is flagrantly against evidence, should be tested by facts and circumstances of each case.
6. Criminal Law. — Unless judge abuses authority to determine whether testimony authorizes submitting case, and whether conviction is flagrantly against evidence, reviewing court cannot disturb verdict.
7. Homicide. — In prosecution for murdering wife, daughter's testimony regarding defendant's hostile attitude and conduct toward wife up to about ten months before homicide, held not objectionable as too remote.
8. Courts. — Refusing to take jury to absent witness' home held not error, where there was no motion for continuance, and affidavit was read to jury as witness' testimony.
Appeal from Lee Circuit Court.
H.D. PARRISH, J.F. SUTTON and E.B. ROSE for appellant.
J.W. CAMMACK, Attorney General, and GEO. H. MITCHELL for appellee.
Affirming.
The appellant, William Warner, at his trial under an indictment returned in the Lee circuit court accusing him of murdering his wife, Sarah J. Warner, was convicted and punished by confinement in the penitentiary for life, and from the order overruling his motion for a new trial, and the judgment rendered thereon, he prosecutes this appeal. But three reasons are presented in argument of counsel for appellant as grounds authorizing a reversal of the judgment, and which are: (1) That the evidence was insufficient to authorize a submission of the case to the jury, and for which reason a peremptory instruction of acquittal should have been given; (2) error of the court in admitting prejudicial and incompetent testimony offered by the commonwealth; and (3) error of the court in overruling defendant's motion to carry the jury to the residence of Vina Johnson, a daughter of appellant, for the purpose of hearing her testimony there, she being confined therein and unable to attend court, and which residence was located in the country some three or more miles from the county seat.
The determination of ground (1) requires a substantial synopsis of the testimony heard at the trial. Appellant and his wife lived in the country alone in a remote section of Lee county, and had been married for forty years or more. Six children had been born to them, but two of them were dead at the time of the tragedy here involved, the last death being that of a son, and which occurred about a year before the killing. Within that period, a sister of appellant also died at the Warner residence. Up to within eight or nine months immediately preceding the death of Mrs. Warner, an unmarried daughter of the couple had lived with them, but at that time she left and lived elsewhere in the neighborhood, but she thereafter made infrequent visits to the home of her parents. Elsie Thacker, a girl fourteen years of age, lived in the home of Mr. and Mrs. Warner as a helper, up to within about four months of Mrs. Warner's death. The Warner residence building consisted of a log house with two rooms separated by a partition in which was a stack chimney, and in one of them there were two beds, one of which was occupied by Mr. and Mrs. Warner, and they had each retired in it on the fatal night, which was January 20, 1931.
A door opened from that room, which was about fourteen feet square, on to a covered porch about eight or nine feet wide, and which occupied the space between the two log rooms and a boxed room that was constructed as an addition to the original residence composed of only the two log rooms. On the side of the wall of the sleeping room in the log house opposite to that door, and also opposite to the side of the room upon which the bed was located, hung a .45 caliber pistol in a scabbard. In the corner of the bedroom and against the partition wall was a broom, and the space off from it toward the fireplace was used for the deposit of fire wood. There was a rocking chair or two in the room, and as many as two ordinary sitting chairs without rockers.
According to the testimony of appellant, Mrs. Warner retired about 6 o'clock p.m., on the day involved, and he followed her about thirty minutes thereafter, but neither of them went immediately to sleep, but he did do so within an hour thereafter. He testified that about 9 o'clock he was awakened by a shot from the pistol that had been hanging on the wall, as hereinbefore described, and he saw his wife standing in the floor between the bed and the fireplace apparently stepping backwards as if to set herself in the rocking chair immediately behind her, but she failed in the effort to adjust herself in the chair, and fell from it to the floor. He picked her up and put her upon the bed, and immediately dressed himself and went to the home of Robert Goe, a neighbor, to request him and his wife to come to the Warner residence which they did as soon as they could dress themselves. Appellant gave, while testifying at his trial, the facts we have outlined, and in addition thereto that his deceased wife was and had been afflicted for some years prior to the tragedy, and that her mind appeared to be affected. The immediate affliction as described by appellant was a swelling of the feet and lower limbs, and an apparent disorder of the kidneys evidenced by their frequent action. He likewise stated, though only a layman, that she appeared to have some dropsical symptoms which he concluded evidenced a bad heart. No physician was introduced or testified as to the mental or physical condition of Mrs. Warner at any time.
Appellant also testified that some ten or twelve years prior to the killing his wife became seized with some sort of affliction that affected her mind for two or three days. She was treated at that time by Dr. Pryse, who had died eight or ten years before the trial. Appellant was corroborated by another lay witness as to his wife's condition at that time. Neither he, nor any other witness who testified in the case, made any claim that the then mental condition of his wife continued from that time until her death, or that there was ever a return of that weakened state of mind at any time thereafter. That described condition and that attack might be accounted for as a result of nature's change in a woman's life occurring at about the age of Mrs. Warner at that time, she being about 62 years old when she died.
For the prosecution, Mr. Goe and wife, the coroner of the county, and a number of other witnesses, testified to the physical conditions in the room where the tragedy occurred immediately following it; and a physician and the coroner testified to the character of wound produced by the bullet upon the body of Mrs. Warner, together with other bruises and wounds found on different parts of her body. Such testimony was undisputed and all of it was admitted by defendant, but he attempted to explain away some portions of it. The facts so testified to were: That the bullet entered the body of the deceased almost under the left arm and some three or four inches below the armpit and came out at the right of the spinal column at about the same level, and it was the only shot wound upon her body; that the thumb and index finger of her right hand and extending down over the web between them was discolored, indicating powder burn; that there were several contusions or bruises of recent infliction on the lower half of the left upper arm covering a surface of three by four inches and the same conditions on the right forearm, and also on the face just above the cheek bone; that there were also upon her arms and face older bruises and contusions which nature had covered with scabs in its healing process; that both buttocks were bruised and of recent infliction; that there was...
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