York v. The Commonwealth

• Citation: 82 Ky. 360
• Parties: York v. The Commonwealth.
• Decision Date: 01 November 1884
• Court: Court of Appeals of Kentucky

82 Ky. 360

York v. The Commonwealth.

Court of Appeals of Kentucky.

November 1, 1884.

APPEAL FROM CUMBERLAND CIRCUIT COURT.

J. H. C. SANDIDGE AND G. A. BRENT FOR APPELLANT.

P. W. HARDIN, ATTORNEY GENERAL, FOR APPELLEE.

JUDGE HOLT DELIVERED THE OPINION OF THE COURT.

The appellant, A. A. York, having been sentenced to five years' confinement in the penitentiary upon a conviction under an indictment charging him with the murder of Richard Kilpatrick, seeks a reversal of the judgment by this appeal.

If it be true that the trial jury were not properly selected by their names not being drawn from the regular panel; or if the Commonwealth's attorney pro tem., who prosecuted the case, had been previously retained to prosecute the appellant, yet he can not rely upon these facts for a reversal in this court, because, even admitting that they would constitute reversible errors if properly presented, yet the record discloses the fact that he made no complaint upon this score until the motion for a new trial was made, and that he then, for the first time, excepted to such action; and a decision of the lower court upon a motion for a new trial is not subject to exception. (Criminal Code, section 281.)

The consideration of the other alleged errors requires a brief statement of the facts attending the killing.

The sheriff of Clinton county, having a bench-warrant for the arrest of one James Poore, that had issued upon an indictment for a misdemeanor pending in the circuit court of said county, and having been unable to execute it, he, by the proper indorsement upon it, authorized the appellant to arrest said Poore.

Upon the night of the killing, the defendant, with one Spearman, went to the house of the father of the deceased, with whom the son lived, and which was in Cumberland and not in Clinton county, for the purpose of arresting Poore, the appellant having learned that he would be there that night.

The testimony tends strongly to show that the father had notified the appellant that Poore would be there that night, and had requested him to come and arrest him, as he did not desire his son to be in his company.

Upon their arrival the father informed them that his son and Poore were not then there, but to secrete themselves near by and that they would detect their coming by the barking of the dog; and then to wait until they had time to retire, and to then enter the house, the door of which would be left open for that purpose.

Accordingly they waited until some time in the night, when they entered the house, each being armed with a shotgun, and the appellant having in the yard, and before entering, cocked both barrels of his gun. His companion told him "there was no use in that and to uncock it," but he persisted in doing so.

Spearman went in first, holding his gun so that the muzzle of it pointed down at the floor; while the appellant followed with his gun cocked and presented at the bed in which were lying both Poore and young Kilpatrick.

Spearman went to the bed, laid his hand on Poore, and told him to surrender; and he replied that he would do so.

Just at this time and while the appellant was standing in the middle of the room with his cocked gun leveled at Kilpatrick, the latter raised upon his knees in the bed and said: "Don't shoot." Spearman raised the same cry, and immediately the gun fired and killed Kilpatrick.

The testimony does not show whether the appellant pulled the trigger or whether the gun was discharged by accident; and it is conflicting as to whether the appellant said, immediately after the firing, that it was an accident, or, "You see what I can do with a damn man."

It is probable that the jury did not believe that he made the latter statement; also that he did not say on the road that night, and before the killing, as testified by one Wolfe, that "if Poore resisted he would kill him, and if Dick Kilpatrick made an attempt he would shoot him," else they would hardly have found a verdict of manslaughter.

The fact that the appellant had been deputized by the sheriff of Clinton county to arrest Poore, did not authorize him to do so in another county.

While a sheriff may, by writing, empower any person to execute a process, yet the action of the sheriff himself under it is limited to his own county, and the power conferred can not exceed that of the principal. It is true that a criminal warrant is not directed to the sheriff of any particular county, as in the case of a civil summons; but it is not done in order that any sheriff may receive and execute it within his county. (General Statutes, chapter 100, sections 7-10.)

Hence it follows that the copy of the indictment and bench-warrant against Poore, with the indorsements thereon, as well as the testimony tending to show that the appellant was acting under said warrant, were not competent testimony.

But even if the law were otherwise, yet the defendant in fact got the benefit of it, as he was allowed to show, by Spearman, that he (appellant) had, at the time of the killing, the bench-warrant, and had been deputized by the sheriff of Clinton county to execute it.

The interruption of the counsel by the court during the argument, and the statement then made by the trial judge that he could not permit counsel to argue testimony that had been excluded from the jury, seems, from the record, to have related to what counsel was then saying as to Poore's character; but even if it referred to the authority under which the appellant claimed to have acted, the appellant can not complain of it, as the testimony was incompetent and the documentary evidence relating to it had been excluded from the consideration of the jury.

The testimony offered by the defendant...