Commonwealth v. Hourigan

JUDGE HOLT

delivered the opinion of the court.

At the June term, 1889, of the Taylor Circuit Court, the appellee, Thomas J. Hourigan, was convicted of *308 murder for the killing of his brother-in-law, Samuel B. Hays, and his punishment fixed by the jury at confinement in the penitentiary for life. A new trial was granted.

During the progress of the trial the Commonwealth, excepted to various decisions of the court, and now, although the case has not been finally disposed of, it questions, by appeal, their correctness, in order that there may be, in the language of the Criminal Code, a “correct and uniform administration of the criminal law.” Its right to appeal, although there has been no final disposition of the case, was declared in the case of the Commonwealth v. Matthews, ante, p. 289.

It is now urged in its behalf that no error was committed upon its part upon the trial of this case; that a new trial was, therefore, improperly granted, and that this court should reverse the order granting it, and, by mandate, order a judgment to be entered in conformity to the verdict.

Where the only question presented is, whether a new trial should be granted, the law has wisely left it to the judgment of the trial court. It witnesses the entire conduct of the trial. It has every opportunity to know whether it has been a fair one, and conducive to justice, both to the public and the individual. Section 281 of our Criminal Code has, therefore, provided that its decision upon a motion for a new trial shall not be subject to exception.

We will now inquire as to the correctness of the decisions of the court of which the State complains.

After it had overruled a motion by the appellee to •continue the case, based Tip on his, written affidavit, it *309 allowed an amended affidavit to be filed, and then held that it would continue the case unless the Commonwealth’s Attorney admitted the truth of the matters stated in the affidavits. This was a matter in the discretion of the court. If an iron rule were established forbidding the amendment, under any and all circumstances, of an affidavit for a continuance, it would be devoid of reason, and would often result in injustice.

It is urged upon the part of the appellee that no question determined during the trial can be considered by this court, because, as is claimed, there is no bill of exceptions. The judge below, acting upon the idea, doubtless, that there could be no appeal by the Commonwealth in the absence of a final judgment, refused to sign or even consider any bill of exceptions. One was tendered in open court upon the part of the State, and the court asked to sign it, and then to order it to be filed. If satisfactory to him, the judge should have signed it; if not, he should have corrected it, or had it done, and then signed it. Upon its refusal, upon the ground that no bill of exceptions was proper in the case, the affidavits of several by-standers were attached to the bill, stating, in substance, that it contained a true version of what took place upon the trial. All this is shown by the record béfore us.

Section 282 of the Criminal Code provides that the bill of exceptions in a criminal cause shall be prepared, settled and signed as in civil cases, and subsections 3 and 5 of section 337 of Civil Code are:

“3. If the bill of exceptions be approved by the judge, he shall sign it, and it shall be filed as part of the record, but not spread at large on the order- *310 book. If not approved, he shall correct it, or suggest the correction to be made, and sign it. A party objecting to the judge’s correction of an exception which purports to state the evidence may, within five days after the bill is signed, file the exception as written by him, if its truth be attested by the affidavits of two by-standers. * * *

“5. If the judge, who presided at the trial do not preside when a motion for a new trial is overruled, the bill of exceptions may be certified by by-stand- ^ ^ ^

Prior to the adoption of the Code of Practice, if a judge refused to sign any bill, it could be certified by by-standers. (Kennedy v. Trustees of Covington, 4 J. J. M., 543 ; Arnold v. Leathers, 2 Dana, 287 .) If this be not still the law, then in case of a refusal a party would be remediless.

It has been held by this court that where a judge certifies by bill his own rulings and the exceptions thereto, it can not be controverted by affidavits, although what he may certify as the evidence in the case may be so controverted when in the form of a bill of evidence. (Garrott, &c., v. Ratliff, 83 Ky., 384 .) In this case, however, he refused to sign any bill.

It was held in Hayden v. Ortkeiss’ Adm’r, 83 Ky., 396 , that where further time is given to prepare and present a bill, and the absence, by reason of death or otherwise, of the judge who presided at the trial pre' vents its being signed by him within the allotted time, it may be certified by by-standers, and, in our opinion, a fair construction of all the Code pro *311 visions relating to this subject, considering also the rule existing prior to their adoption, authorizes such .a course in a case where the judge refuses to sign any bill whatever.

Upon the trial, the court erroneously refused to let .a witness use or even refer to a diagram of the place where the killing occurred, although the witness had, by actual observation and measurement, verified it. Such a course is often necessary to a correct under- . standing of the case by the jury.

A witness was introduced by the State, and upon his main examination testified to the circumstances of the killing as he saw them. Upon cross-examination he was made to say that he did not, at a certain time and place, say that he would make it hot for the father of the deceased when he came over to Campbellsville, .and that a month or two before the killing, or at any time, he did not say that he had heard the deceased say he was going to put on a false face, and go to Tom Hourigan’s and beat him nearly to death, if he did not kill him. Subsequently the accused was permitted, by way of contradiction, to call a party and prove that the witness did make such statements. This should not have been permitted. The matter to which the contradiction related was drawn out by the cross-examination by the accused of - the State’s witness. The statement was not competent as substantive testimony. It was res inter alios. The credit •of a witness may of course be impeached by proof that he has made statements out of court contrary to those made in court, and considerable latitude is allowed in itliis direction; but if they relate to a collateral fact, *312 not relevant to tlie issue, this can not be done. The-question is, whether the matter is altogether irrelevant. Clearly what the witness may have said to the-third party was so in this instance. The witness made-no voluntary statement as to it, nor did the main examination relate to it in the least. He was asked as to it for the sole purpose oí contradiction, and a witness can not be cross-examined as to a distinct collateral matter for such a • purpose. (Crittenden v. Commonwealth, 82 Ky., 164 ; 1 Greenleaf on Evi., sec. 462; 2 Phillips on Evi., page 900.)

The conversation -between Miss Yowell and the accused, as detailed by the latter, was subsequently excluded by the court, and it, therefore, properly refused to let her testify as to it, or whether it ever occurred. The appellee also testified that about a year before the killing the deceased applied to him as a physician to prescribe for a young lady, the deceased telling him, in substance, at the time, that, having seduced her, he had given her medicine from which she was suffering, and that he wanted .the accused to relieve her;, and that, upon his refusing to do so, the deceased-became very angry at him, threatened to whip him,, and said he would make him sorry for it.

The Commonwealth, by way of contradiction, thereafter offered to prove by the young lady, her mother and step-father, that at the time indicated there was nothing the matter with her. It is true their testimony would not have shown conclusively that the-conversation as detailed by the accused, never took place, but it would have so tended, and while but an indirect contradiction, yet it' was competent to enable- *313 the jury to judge of the probability of its ever having taken place.

The testimony offered by the Commonwealth as to the statements of the accused to various parties as to why his wife, who was a sister of the deceased, had left him, was not competent. It had not sufficient bearing upon the issue to authorize its introduction, nor did it go far enough, by way of contradiction of any thing to which the accused had testified, to make it competent. If the cause of the difference between the accused and his wife were proper for investigation upon this trial, it would have been endless.

Witnesses were called by the State, and asked as to the general character of the accused for morality and truthfulness at the time he testified in the case. This was proper. The inquiry should have related to that time, and the court incorrectly held that it must relate to the time of the killing. (Mitchell v. Commonwealth, 78 Ky., 219 .)

The court properly modified instruction No.. 2, relating to manslaughter, by striking out the words: “But mere words, however opprobrious or insulting, are not sufficient provocation to reduce a killing from murder to manslaughter.”

Instruction No. 3, asked by the Commonwealth relative to self-defense, should have been ■ given. If the accused, by his own wrongful act toward the deceased, had made any danger to himself necessary or excusable upon the part of the deceased, then the accused had no right to present such danger as' an excuse for taking the life of the accused.

Instruction “B,” asked by the defense, was improp *314 erly given. It relates merely to a matter of evidence which was already before the jury, and undue prominence should not have been thus given to it.

Save as indicated, the jury appear to have been properly instructed, and this opinion is ordered to be certified to the lower court as the law of the case.