Wilson v. Commonwealth

• Decision Date: 16 December 1910
• Citation: 141 Ky. 341,132 S.W. 557
• Parties: WILSON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

132 S.W. 557

141 Ky. 341

WILSON v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 16, 1910

Appeal from Circuit Court, Whitley County.

Tilden Wilson was convicted of voluntary manslaughter, and he appeals. Affirmed.

Tye &amp Siler and Stephens & Steely, for appellant.

James Breathitt, Atty. Gen., and T. B. McGregor, Asst. Atty. Gen for the Commonwealth.

SETTLE J.

On Sunday, August 7, 1910, the appellant, Tilden Wilson inflicted two wounds upon Joshua Rhodes with a pistol. The first shot passed through one of Rhodes' legs; the second, and fatal shot, entered his breast. Rhodes died an hour or so after the shooting. The indictment returned against appellant for the homicide charged him with the crime of murder. On the trial, the jury, by the verdict returned, found him guilty of voluntary manslaughter without fixing his punishment, but the judgment entered thereon provided that he should be confined in the penitentiary at hard labor "for an indeterminate period of time of not less than two nor more than twenty-one years." Appellant moved for a new trial upon numerous grounds, but the motion was overruled, and he has appealed.

The main facts as to the homicide were that as appellant, accompanied by his two sons, aged six and eight years, respectively, was on the way to the residence of Craig Inman to return a mule borrowed of him, he overtook deceased who was going to a nearby church; having just left his home near the place of the homicide for that purpose. Deceased was an old man, though of larger build than appellant, and he had cut that morning a green hickory stick with which he was walking. When first seen by appellant, who had to pass his house in going to Inman's, deceased was in the road in a stooping position and appeared to be tying his shoe. When appellant got to deceased, he spoke to him saying: "How are you Uncle Josh?" To this salutation deceased replied: "How do you do?" and added, "Tilden, I want to know what in the hell you run down off the mountain and jumped on Henry the other morning for?" Henry thus referred to was a son of deceased's, with whom appellant had previously exchanged some words of anger about a goose. The charge of jumping on Henry Rhodes was denied by appellant, whereupon deceased, according to appellant's testimony, raised his stick and advancing upon him said: "You G___ d ___ son of a liar, you did; you ain't talking to Henry now, you are talking to me." This declaration, according to appellant's further testimony, was followed by repeated attempts on the part of deceased to strike him with a hickory stick; that several of the blows aimed at him appellant warded off with his hands, and at one time he caught and tried to hold the stick, but deceased jerked it from him, and continued the attack upon him; that at that juncture appellant drew his pistol, and shot deceased in the leg, and after a short interval fired the second shot which inflicted the wound in the breast that caused his death. It was also testified by appellant that he shot deceased in self-defense, at the time believing that he was in imminent danger of death or great bodily harm at his hands, and that his only means of safety lay in the use of the pistol.

Bob Veach, a witness for the commonwealth, and Grant Paul and Bertha Ricketts, witnesses for appellant, testified that they heard the parties quarreling, but could understand little of what was said by either of them. They, however, saw deceased strike at appellant with the stick and saw the latter shoot him. In point of fact their testimony largely corroborated his.

Appellant proved by two or more witnesses threats on the part of deceased to attack him, one or more of which was communicated to him before the homicide. It was, however, the theory of the commonwealth, and its evidence tended to prove, that appellant was seeking deceased with the intention of taking his life, and had provided himself with a pistol and brass knucks for that purpose, though the knucks were not used; that deceased was on his way to church when killed; and that though he spoke abusively to appellant on account of some fancied wrong done his son by the latter, and even threatened or attempted to strike him with his stick, his feebleness from age and rheumatism prevented him from inflicting any real injury, and that appellant could have gotten out of his way or taken the stick from him and thereby avoided shooting him. In other words, the contention of counsel for the commonwealth on the trial was that the killing of deceased was unnecessary; therefore, the act was either murder or voluntary manslaughter, and the jury having found appellant guilty of the lesser crime, and there being some evidence to support that conclusion, this court, unless there was some error prejudicial to appellant's rights committed by the trial court, will not disturb the verdict. Whether there was such error remains to be seen.

But four of the numerous grounds complained of as error by appellant in the motion for a new trial are now urged for a reversal, viz.: First. The admission of incompetent evidence. Second. Misconduct of the commonwealth's attorney in his argument to the jury. Third. Unconstitutionality of the statute authorizing the indeterminate punishment inflicted by the judgment. Fourth. The refusal of a new trial.

The alleged incompetent evidence was with respect to the dying declarations of the deceased. We gather from the record that practically all the evidence as to what was said by deceased on this subject was, after its admission, excluded by the court's mentioning to the jury each witness who had testified as to the alleged dying declarations, telling them what each had said, and admonishing them not to consider any of it in arriving at a verdict. Appellant does not, of course, complain of the exclusion of this evidence, but contends that the court erred in allowing its introduction in the first place in the presence and hearing of the jury, and that this error was not cured by its subsequent exclusion and the admonition to the jury not to consider it. In other words, it is insisted for appellant that, when the evidence in question was offered, the court should have required the jury to retire in order that it might be heard by the court alone, and its competency or incompetency determined in the absence of the jury; but that in failing to take this course, and in permitting the jury to hear the evidence, they necessarily considered it to appellant's prejudice, notwithstanding its subsequent exclusion by the court and the admonition to them not to consider it. This contention is not without force, but we are unwilling to sustain it upon the record, as presented, in determining whether evidence of a dying declaration is competent, it is undoubtedly the safer practice for the court to hear it in advance of its introduction before the jury and in their absence, in order that they may get no impression from it that would be prejudicial to the defendant, if the court should rule it incompetent and reject it; but in view of the painstaking care of the trial court in excluding from the jury in this case the evidence referred to, and the explicit admonition given them to disregard it, we are unable to see that appellant was prejudiced by its introduction. This view of the matter is sustained by numerous authorities. In Roberson's Crim. Law, § 227, it is said: "It is discretionary with the trial court whether or not the preliminary proof necessary to the admission of dying declarations shall be conducted in the presence of the jury." To the same effect is the following statement found in 21 Cyc. 895: "The preliminary proof to determine the admissibility of alleged dying declarations may be conducted in the presence of the jury, or otherwise."

The improper statement of the commonwealth's attorney alleged to have been made in argument to the jury was, in substance, that the jury, in order to acquit appellant on the ground of self-defense, must believe from the evidence beyond a reasonable doubt that he was in danger of loss of life or great bodily harm. When appellant's counsel objected to this statement the court, in effect, excluded it from the consideration of the jury by telling them they had the instructions and should try the case according to the law and evidence. Following this admonition of the court, the commonwealth's attorney turned to appellant's counsel, from whom the objection came, and said to him: "I know the law, and know it hurts you," and when this statement was also objected to by appellant's counsel, the court admonished the jury not to consider the statement of the commonwealth's attorney in arriving at a verdict. The bill of exceptions being somewhat indefinite on this point, it is difficult to determine whether the court's admonition included, the exclusion from the jury of the first as well as the last remark of the commonwealth's attorney; but we think it reasonably clear from all that was said by the court that they must have understood that consideration of both statements of the commonwealth's attorney was denied them. While the statements were obviously improper, they were not so prejudicial as to authorize a reversal of the judgment.

But appellant's chief contention is that the judgment should be reversed because the statute under which the indeterminate punishment adjudged against him was inflicted, and that under which the Board of Penitentiary Commissioners may regulate the period of his imprisonment in the penitentiary between the minimum and maximum limits fixed by the judgment of conviction, are both unconstitutional. The act first mentioned, designated as chapter 4, was approved March 4 1910, and may be found in the bound volume of acts of 1910, page...