Webster v. Commonwealth
| Citation | 223 Ky. 369 |
| Parties | Webster v. Commonwealth. |
| Decision Date | 28 February 1928 |
| Court | United States State Supreme Court (Kentucky) |
2. Criminal Law. — Statement made by codefendant immediately after killing that "I have killed a man out there, but don't say anything about it," to first person he met after shooting, held properly admitted as res gestae against accused, in prosecution for murder.
3. Criminal Law. — Statements made subsequent to shooting by codefendants, when they were arrested, or thereafter, held not admissible against accused, in prosecution for murder, and admissible only for purpose of affecting credibility of codefendants as witnesses.
4. Criminal Law. — In prosecution for murder, introduction before jury of clothing of dead man, over objection of accused, where there was no proof that clothing was introduced before jury in same condition as it was in on night of homicide, held error, since clothing was used to show man who was shot had hands up at time, and proof for accused tended to show deceased was firing pistol at time when shot.
5. Criminal Law. — In prosecution for murder, cross-examination of codefendant, showing conviction resulted from indictment under which he and accused were jointly indicted, held error; conviction being proper only as affecting credibility as witness.
6. Homicide. — Where parties were jointly indicted for murder, instruction by which court told jury that they should acquit accused if he shot deceased when he was then in danger of death or great bodily harm, but not giving him right to defend codefendants, held error.
Appeal from Grant Circuit Court.
F.A. HARRISON for appellant.
J.W. CAMMACK, Attorney General, and JAMES M. GILBERT, Assistant Attorney General, for appellee.
J.D. Webster, his brother, Carl Webster, and his cousin Oval Webster were indicted in the Grant circuit court for the murder of Ed Mire. On the trial of J.D. Webster he was found guilty of manslaughter, and his punishment was fixed at two years in the penitentiary. He appeals.
The Websters lived near Folsom. On Christmas Eve, 1924, about 7:30 p.m., they drove into Folsom in a Ford car, and stopped at the store of the Folsom Supply Company. Carl then jacked up the car, and went to work to fix the tire, which was flat. While he was at work on the tire, J.D. went into the store, bought some apples, and perhaps some other small things. He had a jug of whisky, out of which he gave drinks to one or two people. He and Oval then left this store, he having the jug of whisky under his coat, and started up to Petit's store, about 150 yards away, but put down the jug about 20 feet from the pond, which was about 100 yards away. When they got to Petit's store, J.D. bought some trinkets for his children. Oval played on a banjo, and did some dancing. They then left there, returning to the first store. J.D. went in the store. Carl had found out by that time that they had to have a new tube, and J.D. was trying to buy the tube in the store. About this time Oval came to the door, and hollered for J.D. to come out there, that two out there were trying to run over him. J.D. then left the store, and he and Oval went in the direction of the other store. Some loud talking followed, but nobody heard the words. Carl took a shotgun out of the car and followed them. There were two shotguns in the car.
About the time that the Websters reached Folsom, Earl Smith, Gene Smith, J.P. Elliston, Robert Beach, and Ed Mire walked in from the opposite direction. When they got to the Petit store Elliston and Beach stopped there. The two Smiths and Mire went on; Mire saying that he was going to a Christmas tree given at the church, about a quarter of a mile away. To go to this church he should have turned to the left about 50 feet south of the Petit store.
Shortly after J.D. Webster left the supply store above stated, a loud report was heard. Some of the shot struck the oil pump in front of the Petit store and glanced against the windows. Petit went to the door. He could see the bulk of some men in the road, but he could not see who they were, as it was dark. J.D. Webster and Earl Smith came in the store; J.D. saying he was shot, and taking out his pistol to show that it had not been fired. After staying there some minutes, and saying that Ed Mire had been shot, they went out, and brought him in. He was breathing, but died in a few minutes. He was shot in the right side with a shotgun, probably at close range. The next morning at the point where his body lay, some 50 feet beyond the turn off to go to the church, and near the pond on the side of the road, there was a pool of blood on the ground, and on the opposite side of the road there were some mason jars that had had whisky in them, and a bottle partially filled with whisky. To the south of where the body was three empty cartridges were picked up, of the size used in Mire's pistol, which was lying by the side of him when he was found, and south of these were two shotgun shells.
J.D. and Oval Webster were considerably under the influence of whisky. Two witnesses testify to hearing some one in the dark say, twice, "Hands up," before the shots were fired, and Earl Smith testifies that J.D. Webster was standing by the side of him talking when the shots were fired and said, "I am shot." He also testified that J.D. said, "Let's see who it is that is shot," when they passed the body of Mire, and Smith said, "No; let's go on and see about you first." J.D. was shot in the arm; the ball passing just under the skin. Carl was also slightly wounded on the wrist, but the skin was not broken.
The above are the facts as shown by the proof for the commonwealth. On the other hand, the defendant denied that Oval told him that anybody was trying to run over him. He said that he met Oval at the door of the supply store, and he and Oval started up the road to the Pettit store to buy a tube, and, as they went,...
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Taylor v. Com.
...convicted under the indictment. This was the holding in Martin v. Commonwealth, Ky., 477 S.W.2d 506 (1972), and Webster v. Commonwealth, 223 Ky. 369, 3 S.W.2d 754 (1928). Likewise Taylor relies upon Parido v. Commonwealth, Ky., 547 S.W.2d 125 (1977), and Tipton v. Commonwealth, Ky., 640 S.W......