Weber v. Com.

• Decision Date: 07 June 1946
• Parties: WEBER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

196 S.W.2d 465

303 Ky. 56

WEBER v. COMMONWEALTH.

Court of Appeals of Kentucky

June 7, 1946

Rehearing Denied Oct. 4, 1946.

Appeal from Circuit Court, Jefferson County; Loraine Mix, Judge.

John Horace Weber was convicted of assault and battery, and he appeals.

Affirmed.

W. Clarke Otte, of Louisville, for appellant.

Eldon S. Dummit, Atty. Gen., and Frank A. Ropke, Com. Atty Lawrence S. Grauman, Co. Atty., and Carl C. Ousley, Jr. Asst. Com. Atty., all of Louisville, for appellee.

STANLEY Commissioner.

The judgment of conviction of assault and battery imposes a sentence of imprisonment in jail for four years and a fine of $5,000. A reversal is sought on the grounds (1) the admission of incompetent evidence; (2) excessive and unconstitutional punishment; and (3) improper argument of the Commonwealth's Attorney.

According to the evidence for the Commonwealth, during the evening of September 26, 1945, the defendant, John H. Weber, accosted R Davis McAfee while he was adjusting his clothing in the toilet room of a roadhouse, known as Kenwood Inn, with the inquiry, 'Do you recognize me?' to which he replied, 'I don't believe I do. My name is McAfee.' The defendant responded, 'I am Johnny Weber. You plastered my name all over the newspaper,' and, as McAfee testified, 'with that it was like a blinding flash of light in every direction. I don't know what happened except that I was knocked out. You might say I was partially conscious. I have a hazy recollection of feeling like trying to reach up on things and catching hold of the wall, and the next thing I was lying on the floor being kicked in the face. I never knew how many places I was struck. I regained enough consciousness to call for help, and the next thing I knew, the proprietor, or whom I learned since was the proprietor of the place, helped me up.'

McAfee's jaw was fractured; his nose broken; his teeth displaced; one eye was badly bruised, became much swollen and protruded from the socket, and was permanently injured. He also suffered body bruises. He spent nine days in a hospital and was confined to his home for two weeks longer. It was sometime before he was able to resume his normal activities.

According to the defendant's evidence he had known McAfee four or five years. When he became a candidate for office in the previous primary election, McAfee had solicited his support and Weber had refused to give it. On this occasion he addressed McAfee, 'Hello Dave,' and began to joke him about his defeat. Whereupon, McAfee responded, 'I don't like your attitude,' to which he replied, 'That is all right with me; I don't like yours.' Following further expressions of mutual dislike, McAfee 'struck at me,' and hit Weber 'just slightly.' Then, he testified, 'We had a good fight.' He denied knocking McAfee down or kicking him. The defendant was proved to have a bad reputation for veracity and morality, and witnesses introduced to sustain the defense were discredited by their own testimony and that of others.

The victim of the assault is a practicing attorney in Louisville. The defendant frankly responded to the inquiry as to his present occupation, 'I am a gambler.' Upon cross-examination he elaborated his activities. It seems he specialized in handbook operations and race track gambling. The character or characteristics of the two men are revealed in the evidence which the appellant contends was erroneously admitted and its background. On July 17, 1945, during his candidacy for nomination as Commonwealth's Attorney, McAfee had made a speech over a local radio in which he criticised what he deemed to be the lax enforcement of the criminal laws in Louisville. In the course of that speech he referred to the defendant Weber in vigorous terms as a criminal who had escaped punishment over a long period of time. He read a list of 25 offenses, with the dates, for which Weber had been arrested. They included charges of murder, rape of girls under the age of consent (two); malicious shooting and wounding, store house breaking (two); grand larceny (two); conversion; setting up and operating gambling games (three); violating the narcotic law; operating an automobile without owner's consent; selling intoxicating liquor without a license (three); destroying private property, and assault and battery (six charges). In addition McAfee stated that Weber had been arrested many times for breach of the peace and disorderly conduct. The speaker said he would not say that Weber was guilty every time he was arrested but that he had received little or no punishment for any of these offenses and had come to believe himself to be above the law. There was much other language of like import. The speech had been reduced to writing and the part relating to Weber was read to the jury. It was also stated that it had been published in the Courier Journal and was the subject of an editorial in that newspaper.

The defendant vigorously objected to the reference to this speech in the opening statement of the Commonwealth's Attorney and to its introduction in evidence. The court clearly and explicitly admonished the jury as follows: 'Let me say to you again, ladies and gentlemen, that ordinarily this evidence would be incompetent, especially the truth or falsity or correctness of anything Mr. McAfee may have said, or anything that may have been published as a speech, or the alleged speech--all of that would ordinarily be incompetent. You have no right to consider that, or to let that prejudice you against the defendant for any purpose whatsoever concerning any charge made against him, whether it was made against him or not. I am only allowing you to hear that evidence on account of the alleged remark that he is said to have made on the occasion of this assault for the purpose of illustrating, if you do believe it does illustrate, beyond a reasonable doubt, any motive he may have had for this alleged assault. You may consider it for that purpose, and for none other whatever.'

Of necessity it must be presumed that the jury, in recognition of their oath to try the defendant according to the law and the evidence, obeyed the admonition as to the purpose and effect of the testimony. Huddleston v. Commonwealth, 251 Ky. 172, 64 S.W.2d 450.

The appellant, of course, recognizes the elementary rule that evidence pertaining to the commission of other offenses than that for which the accused is being tried is admissible for certain purposes, including that of showing motive. But he maintains that it is only where it is necessary to prove motive that the rule applies, and that such other offenses must be connected with the commission of the crime charged. It is pressed with much earnestness that this evidence was within those exceptions and limitations, for the fight was conceded and the offenses referred to in the statement had no connection with it, and its admission was prejudicial error. We can readily agree with the statement of law (Roberson, Ky Criminal Law, Sec. 1805), but we cannot agree with its application. The cases specially relied on are different. In Raymond v. Commonwealth, 123 Ky. 368, 96 S.W. 515, evidence that a dwelling house of the prosecuting witness had been burned by some unknown person (although suspicion may have attached to the defendant) was admitted in his trial upon the charge of burning the witness' barn. Since the first arson was entirely collateral to the latter and had no bearing upon the guilt or innocence of the accused upon the charge for which he was on trial, it was held to be incompetent. Morse v. Commonwealth, 129 Ky. 294, 111 S.W. 714, is a case of embezzlement in which the very fact of taking and appropriating money to the defendant's own use established the crime, motive and intent being obvious conclusions from the act itself, and evidence of other and distinct offenses was irrelevant and unnecessary. Of like class in this respect is Richardson v. Commonwealth, 166 Ky. 570, 179 S.W. 458, where the charge was breaking into a railroad depot with intent to steal, and there was no necessity to prove a motive since the act of breaking and stealing spoke for itself. The offense of assault and battery is in an entirely different class. While an intent to commit an act may be presumed where there is evidence of an aggravated assault (Sparks v. Commonwealth, 198 Ky. 518, 249 S.W. 749), yet the questions are quite naturally raised as to whether the accused had some reason, apparent or real, for doing so, and in this case why he struck the man. Was it because McAfee precipitated the fight by first assaulting him, as he claimed, or was it because of Weber's previously existing animosity? Motive is a principal fact and is often the manifest source and spring of criminal action. It is the inducement, cause or reason why the thing was done. Its presence or absence is always an important consideration and consequently a legitimate source of inquiry. Cassell v. Commonwealth, 248 Ky. 579, 59 S.W.2d 544; Roberson, Ky. Criminal Law, Sec. 19. Once motive of either party to a fight is established, the jury may from that fact draw the conclusion as to the ultimate fact of who was the aggressor. Any evidence relevant to prove any material fact pertinent to the point in issue and which tends to prove the crime or offense charged ought not to be rejected merely because it tends to prove that at some other time the accused has been guilty of some other separate independent and dissimilar offense. Roberson, Kentucky Criminal Law, Secs. 437, 511, 512, 1800. Evidence of the mutual relations of the parties is relevant and competent so as to enable the jury to properly comprehend and give due weight to their acts and to help illustrate which one of them was the aggressor. McGowan v. Commonwealth,...