Woods v. Commonwealth
| Citation | 282 Ky. 596 |
| Parties | Woods v. Commonwealth. |
| Decision Date | 19 April 1940 |
| Court | United States State Supreme Court — District of Kentucky |
2. Indictment and Information. — Objection that indictment for murder did not carry the names of witnesses appearing before grand jury was waived in absence of motion to quash or set aside the indictment (Criminal Code of Practice, 120, 157).
3. Criminal Law. — Where homicide was committed in January, murder indictment was returned in March, and trial began on April 6, denial of motion for continuance sought on ground that, because of hostile attitude toward defendant in town where homicide took place, he did not have reasonable opportunity to consult witnesses, was not reversible error in view of fact that defense was simple and easy of preparation and defendant was represented by able counsel.
4. Jury. — Where defendant charged with murder and attorney for commonwealth agreed that an order should be entered directing the summoning of a jury from another county defendant was precluded from claiming that court erred in sending to another county for veniremen.
5. Criminal Law. — The fact that special bailiff appinted for summoning of prospective jurors from another county was relative of one of men involved in difficulty was not ground for reversal of murder conviction, where it was not asserted that undisclosed relationship caused baliff to summon any biased or prejudiced juror or that veniremen were selected in any unfair way.
6. Criminal Law. — In prosecution of deputy jailer for murder, the fact that statement of commonwealth's counsel that accused and his son were secretly examining their pistols just before they went out to make arrest was not supported by evidence did not require reversal.
7. Criminal Law. — In murder prosecution, counsel's statement that deceased died never knowing why defendant took his life, and that he inquired a number of times as to why he had been killed, did not require reversal in view of fact that court admonished jury and statement was substantially borne out by evidence.
8. Criminal Law. — In prosecution of deputy jailer for murder committed while attempting to arrest an allegedly intoxicated waman, closing statements of prosecuting attorney, "The thing that's wrong with this country is bootleggers hiding behind a bunch of deputies," "you are going to find" the woman "was drunk, if you don't write a verdict of murder," "I would like to see the hands, and people to stand up who knows she wasn't drunk," were totally uncalled for but did not constitute reversible error.
9. Criminal Law. — The court may in reasonable discretion permit the commonwealth to have separate trials where two or more are jointly indicted.
10. Criminal Law. — In prosecution of deputy jailer and his son, for murder committed while attempting to arrest allegedly intoxicated person, permitting commonwealth to sever and to proceed to trial of deputy jailer alone was not an abuse of discretion (Criminal Code of Practice, sec. 237).
11. Homicide. — Under evidence disclosing that deputy jailer was attempting to arrest allegedly intoxicated person and that deceased appeared on scene suddenly and unexpectedly and was shot by deputy jailer, an instruction on murder was authorized.
12. Homicide. — In murder prosecution, malice may be inferred by jury from all facts and circumstances.
13. Homicide. — In murder prosecution, it is immaterial how recently or how suddenly before the killing the determination to do the act of killing was formed.
14. Homicide. — In prosecution of deputy jailer for murder, instruction that if deceased by force and violence attempted to prevent arrest or to rescue another from custody of defendant, and if defendant believed in the exercise of reasonable judgment that it was necessary to shoot, wound, or kill deceased in order to repel and overcome the force or violence offered him, jury should find for defendant, was favorable to defendant.
15. Homicide. — The rule is, with regard to one undertaking to escape arrest, when the offense is a misdemeanor, the officer may use such force as is necessary or appears to him to be reasonably necessary to overcome such forcible resistance even to the taking of life.
16. Criminal Law. — In murder prosecution, question, "Why did he shoot me?" asked by deceased immediately following shooting, was admissible as part of "res gestae."
17. Homicide. — In murder prosecution, where evidence disclosed that immediately after shooting deceased was taken to hospital and while at hospital stated to his mother, "I'm killed," defendant "shot me and I wasn't doing nothing to nobody, defendant shot and killed me for nothing," "I didn't bother nobody," the statements were admissible as "dying declarations."
Appeal from Leslie Circuit Court.
C.R. Luker, S.E. Duff and L.D. Lewis for appellant.
Hubert Meredith, Attorney General, and W. Owen Keller, Assistant Attorney General, for appellee.
Before S.M. Ward, Judge.
Affirming.
The grand jury of Leslie County on March 22, 1939, returned a true bill charging appellant and another with the murder of Graydon Morgan. The offense was committed about noon on Sunday, January 22, 1939.
The case was called for trial on April 5, 1939, and upon the commonwealth's motion severance was ordered, the commonwealth electing to try appellant. By agreement of parties a jury was to be procured from another county, and by order of court a special bailiff summoned fifty persons qualified for jury service from a nearby county.
The jury found the accused guilty of murder, fixing his punishment at confinement for life. In support of an overruled motion for new trial, appellant set up twelve or more grounds, seven or eight of which are urged here in asking reversal of a judgment entered in accord with the verdict. While the point is not directly made that the verdict was contrary to the evidence, it comes into the argument in discussing one of the instructions given by the court, thus necessitating a brief summary of the proof.
At the time of the homicide appellant was deputy jailer. He had for ten years served a part of that time as deputy jailer, and sometimes deputy sheriff. The record bears out the statement in brief that he was a faithful and fearless officer. His son was not an officer at the time of the homicide, though it appears that when the trouble started which led up to the homicide, he was deputized (verbally) to aid his father in making an arrest
It appears from the record that appellant and deceased, who were related, were on friendly terms; at least there was no particular evidence of bad feeling between the two, though in the brief for appellant it is said in substance that certain political alignments caused an unfriendliness between the sheriff and the jailer and his deputies; a hint as factional differences.
Appellant lived in or near the town of Hyden. On the day of the homicide he had eaten his dinner and returned to the court house, where two of his sons and several friends were sitting in the county judge's office, from which they could observe people on the street in front of or at the side of the court house. Near the court house, at a corner of the yard across the street, Ed Mattingly operated a garage, and in connection therewith a restaurant. On another corner and nearer to the jail, lived Tom Deaton.
Appellant noted considerable activity and movement on the part of several persons, among whom were Mattingly and his wife; Lyons and his wife, and Deaton and his wife. Deceased was not among those who made the numerous trips from the Deaton home to the garage, and vice versa. Appellant says he had observed some unbecoming conduct on the part of the travelers. Observing later that Lyons and his wife and Oma Mattingly went into Deaton's home, staggering drunk, he made preparations to arrest them on their reappearance.
Appellant, accompanied by his son, upon the reappearance of the women, approached them and told them they were drunk. Appellant says: "I commanded their arrest and told them he would have to take them to jail." He saw a half-pint bottle in Oma's coat pocket; removed it, and found it to be half full of "moonshine." He again told her he would have to put her in jail, and she remonstrated, saying, "I will not go to jail." Appellant then took hold of her and started toward the jail, she still resisting. About this time some one went into the Deaton home, apparently giving information as to the arrest, and, at once, Tom Deaton and Lyons ran out of the Deaton home, one or the other carrying two pistols. There was some scuffle over the pistols, but when they "broke loose" each had a pistol and Deaton said to appellant, "You s.o.b. turn that woman loose," and threw up a 45 and fired at appellant. The shot came close to him, not taking effect, though he says he fell to his knees.
At this point the son fired at Deaton, the shot took effect and apparently killed him instantly. Lyons, who had come out of the Deaton home, ran behind some lumber nearby, and opened fire on the son, and there were several shots exchanged between them. Lyons then turned his gun toward appellant, when a deputy sheriff appeared on the scene, and took Lyons' pistol and placed him under arrest. Just at this stage Morgan appeared on the scene; ran toward appellant and said, "What in the hell is going on here?" Appellant wheeled around and saw Morgan approaching; grabbing at him, appellant telling him to keep back, but he kept coming and grabbing with one hand, the other down by his side. Appellant fired one shot which took effect, Morgan sinking to the ground.
The foregoing is taken chiefly from the testimony of appellant, and is corroborated by his son, and to some extent by eye witnesses to some, if not all of the...
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