Wood v. Commonwealth

• Decision Date: 17 April 1934
• Citation: 253 Ky. 794,70 S.W.2d 677
• Parties: WOOD v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

70 S.W.2d 677

253 Ky. 794

WOOD v. COMMONWEALTH.

Court of Appeals of Kentucky

April 17, 1934

Appeal from Circuit Court, Pulaski County.

Ferd Wood was convicted of an offense, and he appeals.

Affirmed.

B. J Bethurum and E. T. Wesley, both of Somerset, for appellant.

Bailey P. Wootton, Atty. Gen., and H. Hamilton Rice, Asst. Atty Gen., for the Commonwealth.

RICHARDSON Justice.

This is the second appeal. On the first trial Wood's punishment was fixed at ten years' imprisonment. On the second, from which this appeal was taken, it was fixed at twelve years. The facts of the case were stated in our opinion in Wood v. Commonwealth, 246 Ky. 829, 56 S.W.2d 556. Therefore we will not iterate them except as they are pertinent to the grounds of reversal as presented in the briefs.

Florida Hargis, a witness for the commonwealth, detailed a conversation she had had with Wood, wherein she claims he stated to her "I'm going to shoot that son of a -- if I get close enough to him again"; to which she responded "I didn't think you ought to shoot him, he hadn't done anything to be killed for." This witness detailed on the first trial the same conversation using the same language. It was objected to on the first trial; the objection was overruled. A proper exception was saved at both trials.

Willie Jones, previous to the killing of Smith, was charged with a public offense. Wood, as deputy sheriff, undertook to arrest him. Jones escaped and thereby avoided the arrest. Later Wood and Jones engaged in a conversation concerning Wood's attempt to arrest him and his escape. The conversation between them is stated in our former opinion. The same character of evidence was given by the witness Luther Baker who claimed he was present at the time of the conversation between Wood and Jones. It was objected to on the first, and also on the second trial.

In our former opinion, without discussing the testimony of Florida Hargis, it was considered as competent. That of Willie Jones, notwithstanding Wood earnestly insisted it was incompetent, is discussed in the opinion and therein declared competent on the authority of Burns v. Commonwealth, 198 Ky. 319, 248 S.W. 848; Wireman v. Commonwealth, 206 Ky. 828, 268 S.W. 586.

The testimony of Florida Hargis though not discussed in our former opinion, its competency cannot now be questioned on this appeal. The doctrine, as defined by this court in both civil and criminal cases, is that "one adjudication settles all errors relied upon for a reversal, whether mentioned in the opinion of the court or not, and all errors lurking in the record on the first appeal which might have been, but were not expressly, relied upon as error." Sowders v. Coleman et al., 223 Ky. 633, 4 S.W.2d 731; Yates v. Stevenson, 193 Ky. 37, 234 S.W. 747; City of Louisville v. River Excursion Co. et al., 253 Ky. 95, 68 S.W. 792.

Andy Bales was permitted to testify in behalf of the commonwealth, over the objection of the defendant, that "on the afternoon of Smith's first escape and before his attempted escape from the officers at the time of the killing," he stated to the witness that the officers "had been shooting at him." This statement of Smith plainly was incompetent and should not have been admitted. However, it amounts to no more than that which was shown by the admissions of Wood and his associate officers, for when they were on the witness stand they admitted they previously had shot to frighten him into surrendering. It is not a prejudicial error to admit incompetent evidence to prove admitted facts. Helm v. Hardin, 2 B. Mon. 231; Davis v. Catlettsburg, K. & C. Water Co. (Ky.) 127 S.W. 479; Gatton v. Dobbin, 147 Ky. 624, 144 S.W. 757; Felty v. Felty, 164 Ky. 355, 175 S.W. 643. See ) 1051 (1), vol. 2, Kentucky Digest, subject "Appeal and Error."

Aside from this, the statement of Smith to Bales is within the category of a "harmless error."

Robert Sears testified that after the body of Smith was put in a car, Wood who was present "had blood on his hands and walked to the pond, washed it off and gave his hands about three shakes like that." The witness demonstrating with his hands the movement of the hands of Wood. No sound reason is advanced, and we conceive of none, for declaring this statement incompetent. The fact Wood had blood on his hands immediately after the body of Smith was carried and placed in the car and to rid his hands of the blood he washed them, was clearly, if not competent, nonprejudicial.

Gillis Herrin claimed he was present at the time of the conversation between Florida Hargis and Wood. The questions propounded to him and his answers thereto indicate hostility or a hazy memory of the witness. A number of questions were asked for the purpose of arousing his memory and eliciting from him the conversation in detail. It is argued that the method of interrogation to obtain the witness' information was prejudicial to Wood. The record discloses that the witness was either unwilling or his memory was not clear, sufficient to justify the extent and method of examination used to obtain his knowledge of the subject-matter about which he was interrogated.

It is an approved practice not to allow on direct examination, a leading question, except under special circumstances making it appear that the interests of justice require it, or it is necessary to elicit the facts. Civil Code of Practice, § 595; Blankenship v. Commonwealth, 234 Ky. 531, 28 S.W.2d 774. The court did not err and it was not prejudicial to Wood to allow the commonwealth's attorney some latitude in propounding leading questions to the witness, if he were unfriendly or ignorant or had exhausted his memory. Foutz v. Hacker, 200 Ky. 233, 254 S.W. 744; Wynn v Commonwealth, 188 Ky. 557, 222 S.W. 955; Johnson v. Commonwealth, 227 Ky. 153, 12 S.W.2d 308. It was in the discretion of the court how often the...