Case One of Two
Jackson v. Commmonwealth
249 S.W.2d 20
March 28, 1952.
ACTION: Judgment reversed with directions.

Defendant was indicted for murder and convicted of voluntary manslaughter. The Knox Circuit Court, Knox County, J. B. Johnson, J., allowed testimony of witness, who, in another action, had been found guilty of false swearing but was given probative sentence. The defendant appealed. The Court of Appeals, Latimer, J., held that, under statute disqualifying as witness any person convicted of offense of false swearing, witness' evidence should have been excluded.

LATIMER, Justice.
Appellant, Clell Jackson, was indicted and tried for murder. The jury found him guilty of voluntary manslaughter and fixed his punishment at 10 years in the penitentiary. He is here seeking reversal on the grounds:

(1) error of the court in admitting incompetent and rejecting competent evidence;
(2) erroneous instructions; and
(3) the argument of Commonwealth's Attorney was prejudicially erroneous.

Appellant and decedent, James Hammons, were brothers-in-law, having married sisters. It appears that some disagreement had arisen between these two families over the title to and possession of some land constituting the estate of the parents of the wives of appellant and deceased, Hammons.

The land on which the killing took place was situated across the road from the home of appellant and adjacent to the home of a Mr. and Mrs. Harris. The evidence shows that Hammons had placed a stack of mining timber taken from the land over which there was a controversy, near the Harris home.

On this fateful afternoon, the deceased and his wife, Mabel Hammons, went to this tract of land which at that time was rented to Dora Merida. They discovered that some of the stack of mine timber had been scattered. After restacking same, Hammons then went to the Harris home to make inquiry as to who had been scattering and carrying off his timber. Arnold and Jewel Jackson, son and daughter of appellant, were at the Harris home. A controversy arose between the Hammons' and the son and daughter of appellant, which resulted in a brawl. The evidence discloses that during the fight the deceased Hammons beat these children with a stick; that immediately thereafter appellant, with pistol in hand, appeared on the scene. The evidence shows conclusively that the deceased had a large stick or club but there is a conflict as to whether or not he was advancing on Jackson with this club. On the basis of this evidence, the jury concluded that appellant acted under provocation and returned a verdict of voluntary manslaughter.

The incompetent evidence complained of was the testimony of Dora Merida. On cross-examination this witness was asked whether she had been convicted of a felony. In response, she said that she had been convicted by a jury's verdict. She was then asked if she was convicted in this court by a jury. She answered: 'Yes.' She was then asked: 'For what?' At this point objection was made and the court said: 'If it's the matter about which I am thinking, it isn't a conviction. It's a probated sentence.' The objection was sustained and by means of avowal these questions and answers were placed in the record:

'Q. What were you convicted for?
A. False swearing.

'Q. And you were probated by the Judge?
A. Yes, sir.'

At this point counsel moved the court to exclude from the consideration of the jury all the evidence of the witness, on the grounds that the witness had been convicted of false swearing. The motion was overruled. Apparently the court below took the position that because the sentence had been probated there was no conviction. The court no doubt followed the position of the Commonwealth that there must be the entry of a final judgment of conviction.

For this reason, the judgment will have to be reversed.

Complaint is made that the court refused to permit the introduction of evidence of what occurred immediately preceding the killing which it is claimed would have tendency to show the condition of mind of appellant. Defendant undertook to show that at the time immediately preceding the killing, when the brawl took place between the deceased and defendant's children, that the deceased struck these children with a club. Effort was made also to introduce the bloody clothes of children. These facts were not communicated to appellant and could have no bearing on his frame of mind. Defendant was permitted to show that his attention was attracted by the screams and cries of these children and that he rushed to the Harris home and that on his way he was told by one who had witnessed the brawl that the deceased had killed his son and that when he reached the scene he saw his daughter with blood streaming down her face and on her clothes, and that he then encountered the deceased with club in hand advancing toward him. Although not so stated in the brief, we infer that appellant is insisting that these other facts were so substantially contemporaneous with the offense charged and so closely connected with it as to form a part of the main transaction and admissible as res gestae. Whether or not evidence is part of the res depends upon the circumstances of the particular case Certainly it must not relate to a past occurrence and must have such spontaneity and logical relation to the main transaction as to preclude the idea of deliberation and fabrication. Although precedent in point of time, the screams and cries of the children, attracting the attention of appellant, obviously become integral parts of the transaction. But the uncommunicated facts and circumstances which occasioned the screams of these children have no logical relation with the main transaction. The court properly excluded this evidence.

We think it unnecessary to discuss the other questions raised as most likely upon another trial they will not arise.

The judgment is reversed for proceedings not inconsistent herewith.



249 S.W.2d 20

Case two of two
Jackson v. Commonwealth
275 S.W.2d 788
Feb. 18, 1955.
ACTION: Judgment affirmed.

Clell Jackson was indicted for the murder of James Hammons. He was convicted of voluntary manslaughter and sentenced to twenty-one years' confinement. This is the second appeal of this case. The first opinion may be found in Ky., 249 S.W.2d 20.

On this appeal, appellant complains that the court erred in not admitting evidence concerning a prior difficulty between the children of appellant and the deceased, and as a second ground, complains of the demeanor of Mabel Hammons, widow of the victim, while she was testifying.

The testimony on the second trial was substantially the same as introduced on the first. The circumstances of the killing are set forth in the first opinion. The nature of the questions raised on appeal renders it unnecessary to review them.

The first ground urged for reversal also was complained of on the first appeal. The Court held on that appeal that the evidence with reference to the difficulty between the deceased and the two children of the appellant was not admissible for the purpose of showing the state or condition of mind of the deceased immediately preceding the killing because these facts were not communicated to the appellant prior to the shooting, and, therefore, could not have had any influence on his conduct or state of mind at that time. The trial court properly excluded this testimony. The second ground for reversal is based upon the conduct of Mabel Hammons, widow of the victim. She became emotionally upset and cried in the presence of the jury while testifying. Apparently, from the record, she regained her composure and continued to answer such questions as were asked her. One juror also was seen with tears in his eyes at this time, and the appellant's counsel moved the court to declare a mistrial and continue the case because of such conduct. The trial court denied the motion. It is insisted that this was very prejudicial, especially in view of the fact that the verdict was signed by the same juror who had been seen with tears in his eyes.

It is a frequent occurrence in homicide cases that the next of kin or other close relatives, under the stress of testifying, or when confronted with personal belongings of the deceased, become emotionally upset, cry, and lose their composure. These are matters that cannot be anticipated and cannot be prevented by denying such persons the right to be present in the courtroom during the trial. Frequently, the widow, as in this case, or next of kin may be a witness or the person necessary to assist the officers prosecuting the case. Had counsel for appellant requested the court, it would have been the duty of the court to admonish the jury concerning such disturbance. However, since no such request appears to have been made, the failure to give the admonition and the conduct complained of are not considered prejudicial. The court properly refused to discharge the jury.

Judgment affirmed.

HOGG, J., not sitting.



275 S.W.2d 788


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