Previously:
[November 29, 1907] -
On last Friday afternoon at the dead man's home near Wildie, Woolford Adams shot and instantly killed Will Hayes a son of J. H. Hayes. Adams had gone to Hayes home with a shot gun and the proof at the coroner's inquest showed that Hayes, who had just come in from his work was standing by the stove and from the range of the shot, which was from a shot gun which tore Hayes chin off, that he was looking down at the time the shot fired. The seven year old child of Hayes says her father never spoke to Adams when he walked into the room. Hayes on a former occasion had told Adams to stay away from his home. Adams is only 16 years of age. Some rather sensational evidence will no doubt be brought to light when the trial comes. [1][November 29, 1907] -
Woolford Adams charged with the murder of Will Hayes, a son of J. H. Hayes, waived the right of examination and was held without bail to await the action of the grand jury. [2]---
[December 13, 1907] -
J. H. Hayes was here Monday to settle up reward which he offered for Woolford Adams, the slayer of his son Will. D. G. Clark and the two sons of J. S. Prewitt captured Adams and received the reward. Mr. Hayes is heart-broken over the terrible tragedy and he does not hesitate to say that he believes his son's wife will be deeply implicated. [3]---
[December 20, 1907] -
CIRCUIT COURT:--The present term of court fell short of being a busy one, and but little relief to he conjested condition of docket which for so long has existed in this county. Since our last issue the following case were desposed of up to Wednesday when the court was finally adjourned. William Walker given four years in the pen for striking Edgar Mullins with brassknucks. He was given an additional 4 1/2 years for false swearing making a total of eight and one half years. Floyd Wells for falseswearing case dismissed, Mitchell Mullins for forgery dismissed; Ed Mullins charged with killing Greely Mize acquitted. Joe Mize for malicious shooting in three cases continued; Woolford Adams, indicted for willful murder by the present grand jury, had his case continued until next term. The fine of $10 each against Robt. Lemons, George Sambrooks, Harry Lee and John Johnson set aside. [4]---
[March 27, 1908] -
The case against Woolford Adams, charged with willful murder in the killing of William Hayes, was called Wednesday when both sides announced ready. [5]
---
[April 3, 1908] -
CIRCUIT COURT:-- The jury trying Woolford Adams for the killing of Williams Hayes, which case was before the court at the time of our last issue returned a verdict of guilty fixing his punishment at 18 years in the pen. [6]---
[April 7, 1908] -
At the recent term of the Rockcastle circuit court Woolford Adams was given 18 years in the penitentiary for killing William Hays, and Charles King for killing Thomas Young caught a six-year sentence. [7]---
[June 12, 1908] -
Court of Appeals of Kentucky.
ADAMS
v.
COMMONWEALTH.
June 12, 1908.
Appeal from Circuit Court, Rockcastle County.
“To be officially reported.”
Wolford Adams was convicted of voluntary manslaughter, and he appeals. Affirmed.
*348 Bethurum & Bethurum, for appellant.
James Breathitt, Atty. Gen., and Tom B. McGregor, Asst. Atty. Gen., for appellee.
SETTLE, J.
Appellant was indicted in the Rockcastle circuit court for the murder *349 of William Hays. On the trial the jury, by their verdict, found him guilty of voluntary manslaughter, and fixed his punishment at confinement in the penitentiary 18 years. Judgment was thereupon entered in conformity to the verdict. Appellant was refused a new trial by the circuit court, and, by this appeal, seeks a reversal of the judgment of conviction.
Appellant killed Hays by shooting him with a shotgun at the latter's residence. Although but 15 years of age at the time of the homicide, appellant had become greatly infatuated with the wife of deceased, who was 25 years of age and the mother of three children. She was evidently a lewd woman, and had maintained an improper intimacy with appellant for at least a year before the homicide. She had twice left her husband, and during one or both of these separations became an inmate of a bawdy house. By correspondence and assiduous personal attention of an affectionate character, she fed appellant's passion until it became his habit to visit her two or three times a week for a year before he killed her husband. During and between such visits she furnished him with cheap novels and other unwholesome reading matter, of the “Buffalo Bill” variety, which could not in any way have profitably ministered to his intellectual or moral growth. On the day of the homicide appellant, gun in hand, left his father's residence, which was about a quarter of a mile from that of deceased, and after, as he claimed, spending two hours in hunting squirrels, reached the house of the latter, upon entering which he leaned his loaded gun against the wall by the door, took a chair nearby, and apparently became absorbed in the contents of a novel which Mrs. Hays handed him. When he arrived at the Hays' residence, deceased was engaged in gathering corn, but soon came to the crib lot with a load, and called to his wife to come to him. She obeyed the call, and after a short conversation with her husband returned to the room where appellant still sat reading. Telling appellant of the presence near the house of her husband, she requested him to go to another room, and remain until the husband left, in order that the latter might not see him; but appellant failed to comply with her request. In a short time deceased went into the house, and, passing through the room by appellant without speaking to him, entered the kitchen, and there deposited his coat which had been carried on his arm. Again coming into the room where appellant sat, deceased said to him: “Wolford Adams, this is my house and none of yours. You get out of it.” Upon completing this statement, deceased reached a stove used for heating the room, and, bending over it, proceeded to warm his hands. While deceased was warming his hands at the stove, appellant got upon his feet, seized his gun, and shot deceased in the jaw and neck. The latter fell to the floor, and immediately expired. When shot by appellant, deceased was not menacing him in any way, or even looking at him, and was at the time unarmed. Thus far we have given, in substance, the testimony of the commonwealth which was furnished by Mrs. Hays and two of her children, one eight and the other seven years of age, who, beside appellant, were the only eyewitnesses of the tragedy. On the other hand, appellant's testimony was to the effect that deceased upon entering the room cursed his wife and appellant; that at this juncture, fearing an attack from deceased and intending to leave the room to avoid it, appellant picked up his gun, which deceased attempted to grasp with his left hand and take from him; at the same time moving his right hand toward his hip pocket as if to draw a weapon with which to kill him, seeing which appellant pointed the gun at deceased, and fired in his necessary self-defense.
From the foregoing outline of the evidence it will be seen that of the commonwealth conduced to prove that in shooting deceased appellant was guilty of willful murder, while that of appellant tended to prove that the shooting was excusable on the ground of self-defense. It may be remarked, however, that the fact that the shot from appellant's gun entered the lower side face and neck of deceased would seem to support the testimony of the commonwealth's witnesses that, when shot, he was warming his hands at the stove, and not looking at appellant. If, as claimed by appellant, he took the life of deceased to save his own, the latter's attack upon him must have been provoked by jealousy arising from appellant's improper intimacy with his wife. Upon the other hand, if appellant took the life of deceased without justification, jealousy doubtless furnished the motive for the homicide, and the act was therefore murder, because maliciously committed. In view of the evidence contained in the record, appellant has in our opinion no right to complain of the verdict. His youth, and the fact that his inexperience had made him a victim of the arts of a designing woman, no doubt appealed to the sympathy of the jury, and induced them to find him guilty of voluntary manslaughter. When otherwise they would have found him guilty of murder, as charged in the indictment.
We will only consider such of the grounds urged in the circuit court for a new trial as are now relied on by appellant for a reversal of the judgment appealed from. The errors assigned are four in number: (1) That the circuit court failed to appoint a commonwealth's attorney pro tem. to act in behalf of the commonwealth in conducting appellant's trial. (2) That employed counsel was improperly permitted to make the closing argument to the jury. (3) That the county attorney and employed counsel were allowed to make in argument to the jury improper and inflammatory statements that were prejudicial to appellant's substantial rights. (4) *350 That incompetent evidence was admitted for the commonwealth in rebuttal.
As to appellant's first contention, it may be remarked the record shows that the regular commonwealth's attorney was disqualified to engage in the prosecution of appellant by reason of his employment by the latter, before his election as commonwealth's attorney, to defend him for killing deceased. The commonwealth was therefore as fully deprived of that officer's services in appellant's case as if he had been absent. Indeed, in contemplation of law he was absent. The commonwealth, however, was represented throughout appellant's trial by the county attorney who conducted the examination in chief of the state's witnesses, made an argument to the jury, and properly performed such other duties as are required by law to be discharged by the commonwealth's attorney. Section 120, Ky. St., provides: “In the absence of the commonwealth's attorney, at any term, or part of a term, of a circuit court, the judge of such court may appoint some suitable attorney to act in his absence *** but the court shall not appoint an attorney to act in the place of the commonwealth's attorney unless he and the county attorney are both absent, or of kin to or counsel for the accused, except in cases of felony.” This section contains the only authority conferred by the law of the state upon the circuit judge or other court to appoint a commonwealth's attorney pro tem. Section 127, Ky. St. 1903, which in part defines the duties of the county attorney, provides: “He shall attend to the prosecution of all cases in his county in which the commonwealth or the county is interested; *** he shall also attend the circuit courts held in his county and aid the commonwealth's attorney in all prosecutions therein and in the absence of an acting commonwealth's attorney, he shall attend to all commonwealth's business in said courts.” Considering the two sections quoted as one (and they should be so read), their meaning is that the judge of the circuit court shall, in the absence of both the commonwealth's attorney and county attorney, or when both are of kin to or of counsel for the accused, appoint a commonwealth's attorney pro tem., to perform the duties of both, whether in cases of felony or misdemeanor. But that the judge shall not, though the commonwealth's attorney be absent or of kin to or counsel for the accused, appoint a commonwealth's attorney pro tem. When the county attorney is present and not of kin to or of counsel for the accused, except in cases of felony, in which event he may appoint a commonwealth's attorney pro tem. but is not bound to do so; the appointment being discretionary with him. If this be a correct interpretation of the statute in question, of which we have no doubt, we must further hold that the failure of the circuit court to appoint a commonwealth's attorney pro tem. to represent the commonwealth in appellant's trial was not error. The county attorney took an active, if not the leading, part in the prosecution. The record manifests the ability with which he and associate counsel conducted the case, and fails to indicate that in dealing with appellant's substantial rights either was less than ordinarily fair. The prosecution was not, as insisted, wholly turned over to the control of counsel employed by the friends of deceased to convict appellant. It does not appear from the record that the county attorney was, at any stage of the trial, unmindful of his duty, or of the appellant's rights.
We are aware that much may justly be said of the danger of intrusting the prosecution of criminal cases too much to employed counsel, and we do not mean to be understood as holding that either the courts or commonwealth or county attorneys should be permitted to turn over the prosecution of criminals to those who are under no responsibility to the state, but the right of employed counsel to assist in such cases has long been recognized, and their assistance may be accepted by official prosecutors of the commonwealth charged with the duty of enforcing the law. Obviously the commonwealth's attorney is the representative of the state in all prosecutions for violations of its criminal and penal laws, but, under the law, the county attorney is not less so, and his responsibility to the law, the courts, and the people is just as great. Both should be honest, fearless, and impartial in the performance of official duty, and as far removed from conniving at the escape of the guilty from punishment, as of demanding a conviction that would be unauthorized. It is true, as claimed by counsel for appellant, that this court in Keeton v. Commonwealth, 108 S. W. 315, 32 Ky. Law Rep. 1164, held that it was reversible error for the trial court to refuse to appoint a commonwealth's attorney pro tem., but it appears from the opinion that the county attorney was in that case permitted by the court to turn over the prosecution of the accused wholly to counsel employed by relatives of the person whom he killed, and that, too, over the objection and notwithstanding a motion of the accused that a commonwealth's attorney pro tem. be appointed. Upon the facts of that case, we are yet of opinion that the trial court abused its discretion in refusing to appoint a suitable attorney to act in the place of the commonwealth's attorney; but in discussing generally the power of the judge of the circuit court to make such appointment the opinion in some measure misinterpreted section 120, Ky. St. 1903, and entirely overlooked section 127, relating to the duties to be performed by county attorneys in the circuit court. The opinion in Keeton v Commonwealth, supra, is now, therefore, modified to the extent that it conflicts with the conclusions herein expressed.
The second contention of appellant is not *351 well taken. This court will refuse to reverse a judgment of conviction in a criminal case upon the ground that employed counsel was permitted to make the opening statement or close the argument, if it appears, as in this case, that the trial was otherwise properly conducted, and the defendant's guilt is reasonably certain. Bennyfield v. Commonwealth, 17 S. W. 271, 13 Ky. Law Rep. 446; Roberts v. Commonwealth, 94 Ky. 449, 22 S. W. 845.
The third contention of appellant is likewise untenable. The statements of the county attorney in argument in regard to the peaceable character of deceased, while not strictly within the record, was not more improper than the statements made in argument by appellant's counsel imputing to deceased a character for violence not shown by the evidence. The county attorney was responding to this statement. What he said should have been omitted, but the court's failure to exclude it was not prejudicial error. The further complaint of appellant, that employed counsel in argument to the Jury said: “The children [meaning the children of the deceased used as witnesses for the commonwealth] testified before the coroner's jury, and could have been contradicted by members of that jury, if their testimony on the trial of appellant differed from that given by them before the coroner”-cannot be sustained, because the statement was excluded by the court and the jury given to understand that they were not to consider it. Therefore it could not have been prejudicial to appellant.
The fourth contention, relating to the admission for the commonwealth of evidence in rebuttal, is equally untenable. The testimony was furnished by several witnesses, and was as to the location of the body of deceased immediately after the killing, location of blood spots, and the fact that no arms were found upon his person. Much of this testimony might have been introduced in chief, but it was made necessary and competent in rebuttal by the testimony of appellant, which brought out new particulars as to these matters, and besides, differed in many material respects from that of other witnesses introduced in chief by the commonwealth. The testimony in question was properly admitted. The instructions aptly presented all the law of the case.
Being satisfied that the record is free from prejudicial error, and that appellant had a fair trial, the judgment is affirmed. [8]
------------------------------
[1] Mount Vernon Signal, Mount Vernon, KY. November 29, 1907. Page 3. LOC. http://chroniclingamerica.loc.gov/lccn/sn86069561/1907-11-29/ed-1/seq-3/
[2] Excerpt from "County Court." Mount Vernon Signal, Mount Vernon, KY. November 29, 1907. Page 3. LOC. http://chroniclingamerica.loc.gov/lccn/sn86069561/1907-11-29/ed-1/seq-3/
[3] Excerpt from "Personal." Mount Vernon Signal, Mt. Vernon, KY. December 13, 1907. Page 3. LOC. http://chroniclingamerica.loc.gov/lccn/sn86069561/1907-12-13/ed-1/seq-3/
[4] "Circuit Court." Mount Vernon Signal, Mount Vernon, KY. December 20, 1907. Page 3. LOC. http://chroniclingamerica.loc.gov/lccn/sn86069561/1907-12-20/ed-1/seq-3/
[5] Excerpt from "Circuit Court." Mount Vernon Signal, Mt. Vernon, KY. March 27, 1908. Page 3. LOC. http://chroniclingamerica.loc.gov/lccn/sn86069561/1908-03-27/ed-1/seq-3/
[6] Excerpt from "Circuit Court." Mount Vernon Signal, Mount Vernon, KY. April 3, 1908. Page 3. LOC. http://chroniclingamerica.loc.gov/lccn/sn86069561/1908-04-03/ed-1/seq-3/
[7] Excerpt from "In Neighboring Counties." Interior Journal, Stanford, KY. April 7, 1908. Page 1. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052021/1908-04-07/ed-1/seq-1/
[8] Adams v. Commonwealth, 33 Ky.L.Rptr. 779, 111 S.W. 348 (1908).
.
No comments:
Post a Comment