Woods v. Commonwealth

• Decision Date: 19 April 1940
• Citation: 139 S.W.2d 439,282 Ky. 596
• Parties: WOODS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

139 S.W.2d 439

282 Ky. 596

WOODS v. COMMONWEALTH.

Court of Appeals of Kentucky

April 19, 1940

Appeal from Circuit Court, Leslie County; S. M. Ward, Judge.

Henry Woods was convicted of murder, and he appeals.

Affirmed.

C. R Luker, of London, S.E. Duff, of Hazard, and L. D. Lewis, of Hyden, for appellant.

Hubert Meredith, Atty. Gen., and W. Owen Keller, Asst. Atty. Gen for appellee.

MORRIS Commissioner.

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 at 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 occurrences.

For the commonwealth, the wife of deceased said that on Sunday morning she and deceased had gone up to a saw mill to get some "two by fours," and were returning home. They stopped for a while at the home of relatives. He left for the purpose of getting a shave, but did not return for dinner. The wife shortly after noon went out and found him at the garage. They were just preparing to get into a truck to go home when the wife heard some one crying, and said, "Let's stop and see who it is." She and Morgan then walked toward the scene of the difficulty, and when they got near Morgan said: "Henry what's the trouble out here?; Henry had his back to the court house; he heard his voice and looked around and seen us standing there, and he just turned around and fired, like that. When Henry went to shoot him, he said, 'Lord have mercy Henry don't kill me.' He went to sinking and looked up and said, 'What did Henry shoot me for?"' She says that when the shot was fired, Morgan had his hands up. Morgan was taken to the hospital at once, where an operation was performed, but he died about noon the following day.

Oma Mattingly testified that on Sunday morning she worked at the garage a while and then went to Sunday School, leaving there about eleven o'clock, returning to the garage. She was positive in her assertion that she had not drunk any liquor that morning, and had none on her person. She went home with Mrs. Deaton to assist in preparing dinner. She had talks with Clifford Lyons and his wife. She and Mrs. Deaton went over to the garage to get drinking water, and "ask the men to come to dinner." The two men and women then started to the Deaton home, and the two women turned to go to the garage for a loaf of bread which they had bought and left there.

Just at this point she said appellant and his son called to them, and they looked back, but went on not thinking that they were being called. They kept walking, and appellant grabbed witness, and the son took hold of her companion. They started toward the jail, and the son turned his prisoner loose and fired at Deaton, killing him. She says appellant then threw his gun on her husband, Ed Mattingly, and she grabbed both his hands, and the pistol fired. Appellant and witness struggled some time over the pistol, and in the struggle she says he struck her and knocked her down. She says just about this time Morgan came up back of her and said: "Lord have mercy, don't do that, and Henry throwed his gun around and Gradon staggered back." She says Morgan never at any time took hold of appellant.

Another witness, who was in the melee, said that when Morgan came up appellant had his pistol pointed at witness, but turned and fired at Morgan, who at the time had his hands up. He and other witnesses, one a deputy sheriff, estimated the distance between appellant and Morgan at the time the shot was fired, to be from 5 to 10 steps. Some of them tell of the words used by Morgan as he came up, though do not entirely agree. They do agree, however, that Morgan had no weapon, and when he was shot had his hands up, begging appellant not to shoot, or not "to kill anybody else."

We need not give any further details of the evidence, but merely say that the testimony of the commonwealth, above recited, was corroborated, and that the weight of the evidence shows Oma Mattingly was not drunk on the occasion.

It is first contended that the court erred in overruling demurrer to the indictment, but counsel points to no particular reason why, and we can find none. The record does not show that demurrer was interposed. Inspection shows that it alleged the commission of a public offense, and was to all intents and purposes in conformity to law. It is stated in brief that the indictment did not carry the names of witnesses appearing before the grand jury, as required by § 120 of the Criminal Code of Practice, and it is contended that this omission was fatal.

It is true that the names did not appear as required, but the transcript fails to show that the defect was called to the attention of the court, even on motion for a new trial. In the absence of a motion to quash or set aside the indictment, the objection is treated as waived. Criminal Code of Practice, § 157; Ridings v. Com., 245 Ky. 22, 53 S.W.2d 190; Sloan v. Com., 211 Ky. 318, 277 S.W. 488, and cited cases.

Contention No. 2 is that the court erred in refusing to sustain his motion for a continuance. The record shows that the homicide was committed in January. The indictment returned in March,...