23 Ky.L.Rptr. 1191
Court of Appeals of Kentucky.
Oct. 31, 1901.
ACTION: Reversed.

Appeal from circuit court, Knox county.
"Not to be officially reported."
John Hendrickson was convicted of murder, and he appeals.

Appellant, John Hendrickson, was indicted in the Clay circuit court for the murder of Calloway Carnes, at the February term, 1901. By agreement the venue of the action was changed to the Knox circuit, and the case was set for trial on the 7th day of the April term of that court. The papers were not filed by the clerk in the Knox circuit court until April 11th, and the case was then set for trial on the tenth day of the term. The term began April 1st. The defendant had process awarded for his witnesses, and a special bailiff appointed to serve it in Clay county. The process, however, was not executed. The defendant filed his affidavit, and moved the court to continue the case. The court allowed the affidavit to be read as the deposition of the absent witnesses, and refused to continue the case. At the conclusion of the commonwealth's evidence the defendant filed an affidavit alleging surprise at the testimony of the witnesses for the commonwealth, in that they had sworn on the trial to a substantially different version of the facts from that stated by them on the examining trial, and he gave the names of persons in Clay county by whom he could prove this. He again asked a continuance, or time to procure the attendance of these witnesses. His motion was overruled. The jury returned a verdict finding him guilty of murder, and fixing his punishment at confinement in the penitentiary for life.

The deceased, Calloway Carnes, had married the defendant's sister. There had been some trouble between them, and she had left him, taking the baby with her to Clay county. Carnes and the defendant lived in Bell county. During the week before Christmas, 1900, the defendant was at Carnes' house, working with him, and, at the request of Carnes, agreed with him to go over to Clay with him to see his baby, as Carnes did not want to go unless the defendant went with him. They started from Carnes' house together, each on horseback; the defendant having Carnes' pistol, and Carnes having none. It was during Christmas time. They had been drinking together before they started, and got more whisky on the way. They traveled along until they got into Clay county, having come alone together for some distance. They finally overtook in the road Jack Asher and Newton Gambrel. All four drank together, and they then went on all friendly, after some rough play, till they came to the head of Lick Fork, where they found Newton Gambrel's wife, Mahaley Furl, Josie Sizemore, and Tom Woods, who had built a fire there, and were waiting for Asher and Gambrel. Here pretty much all the party took a drink again. Mahaley Furl got up behind defendant, Gambrel's wife got up behind him, and the party moved on. They had not gone very far before the deceased, Carnes, called to the defendant to stop, and while they were talking the rest of the party went on. After they had gone same little distance,--perhaps a quarter of a mile,--they were overtaken by the defendant and Mahaley Furl, on foot, who told them that the defendant had shot and killed Carnes. They all went back then, and found Carnes lying by the side of the road, dead. So far there is no conflict in the testimony. The defendant and Mahaley Furl, who were the eyewitnesses to the homicide, stated that, after the others left, Carnes drew a knife, and attacked Hendrickson with it, cutting his clothes two times, and that Hendrickson finally drew the pistol and shot Carnes as he was cutting at him the third time. The proof is conflicting as to what Hendrickson and Mahaley Furl said when they overtook the party in front. Some of them state that Hendrickson said he had killed Carnes, and they must swear him out. He and Mahaley Furl testified that he said that he had killed his best friend; that he was sorry for it, but had to do it to save his life; that Carnes was cutting at him with a knife; and that some of them must go back to Carnes and stay with him, or he would go back and stay himself. This testimony of theirs is confirmed by some of the commonwealth's witnesses on cross-examination and by the circumstances. Mahaley Furl was 18 years of age; Hendrickson, 23. He had taken her upon the mule behind him as an accommodation. It is not reasonable that while thus situated he began a difficulty, and the proof is clear that he was in front, going ahead, when stopped by Carnes. While none of the witnesses say so in express terms, we are satisfied, from the number of times these men had taken a drink, that neither of them was strictly sober. The haste with which the defendant went afoot after the persons in front, leaving his mule behind, also tends to show want of deliberation. If the witnesses named in his affidavit had appeared at the trial and given the testimony set out in the affidavit, it would have not only thrown much light on the case, but might have induced a different verdict. Under the peculiar circumstances, we think it perhaps would have been proper for the court to have given the defendant time to procure his testimony, or granted a continuance. But whether the conviction should be reversed for this we need not determine, as the judgment must be reversed for other reasons.

After the jury were sworn, this occurred: "Thereupon Hon. John L. Isaacs, commonwealth's attorney, read the indictment to the jury, and the indorsements thereon, but did not make any statement of the facts to the jury, further than to say he was not familiar with the facts, but they would be detailed by the witnesses. To this the defendant at the time objected, the court overruled the objection, and the defendant excepted." Sections 219 and 220 of the Criminal Code of Practice are as follows: "The clerk or commonwealth's attorney shall then read to the jury the indictment and state the defendant's plea." "The attorney for the commonwealth may then state to the jury the nature of the charge against the defendant and the law and evidence upon which he relies in support of it." There is a material difference between these two provisions. The attorney for the commonwealth is not required to state to the jury the nature of the charge, or the law and evidence upon which he relies. He is permitted to do this, but it is left in his discretion what statement he shall make. It is said that the commonwealth's attorney omitted a statement of the facts to the jury in this case for the purpose of misleading the defendant, as he was not aware of the proposed change of front by the commonwealth's witnesses since the examining trial; but we must assume that the official did his duty, and truly stated that he omitted a statement of the facts because he was not familiar with them. The other section is, however, mandatory. The indictment must be read to the jury, and the defendant's plea must be stated to it. If this is not done, it is error. The record before us does not show that the defendant was arraigned, or waived arraignment, or entered any plea to the indictment. The arraignment of the defendant cannot, under the Code, be dispensed with, in a trial for felony, without the defendant's consent. The purpose of it is to secure to the defendant knowledge of the nature of the accusation against him. The purpose of requiring the indictment to be read to the jury, and the defendant's plea to be stated to them, is to inform them of the issue they are to try. The statutes are peremptory. They afford the defendant invaluable safeguards in trials for felony, and unless their requirements are substantially complied with a conviction cannot be allowed to stand.

The defendant proved by a number of witnesses who were acquainted with the general character of the deceased that his character was that of a dangerous and violent man. On cross-examination these witnesses, over the defendant's objection, stated that his reputation was that he would not attack a man unwarrantably, but would defend himself; that his reputation was that he would not go out and wrongfully seek to make a fight, but was true to his friends; and that his friends always knew where to place him. This was improper. The inquiry should have been limited entirely to the general character of the deceased as a quiet, peaceable man, or as a violent or dangerous one.

After Mahaley Furl had testified as a witness for the defendant, the commonwealth sought to impeach her evidence by proof of a statement she made under oath before a magistrate a few days after the homicide. To avoid the force of the contradiction of her testimony, the defendant offered to prove by her: That Ike Mills and Sherman Meredith came to her at Newton Gambrel's, in Clay county, about dark on the second night after Carnes was killed, armed with pistols, and told her they had come for her to go to the home of the mother of Calloway Carnes, and that she must go. That they alarmed her very much. She told them she could not go, and they told her if she did not go the Carnes boys would bring a hundred men, and come and arrest her, and force her to go, or kill her. That she was frightened by their action in waiving their pistols around and cursing. One of them told her to get up behind him. That she had to go, and she did get up behind him, and went from fear that they would kill her. That they took her to the home of the mother of the deceased, where a woman she did not know told her how to swear, and said if she did not swear that way they were going to kill her. A brother of the deceased was there, besides the men who had brought her. And that she was scared, and swore what they told her to swear. All her statements as to how she came to make this affidavit should have been allowed to go to the jury. The evidence should not have been confined to what took place at the house of the justice of the peace after they got there. The proper way to introduce the evidence was to present the affidavit to the witness, and prove by her that that was the paper she signed, and then read it to the jury. It was not proper to ask her if the paper did not contain such and such statements, as the paper was the best evidence of its contents. After the learned author has shown in the preceding section that the witness must be given an opportunity to explain statements out of court which are relied on to impeach his testimony: "A similar principle prevails in cross-examining a witness as to the contents of a letter or other paper written by him. The counsel will not be permitted to represent in the statement of a question the contents of a letter, and to ask the witness whether he wrote a letter to any person with such contents, or contents to the like effect, without having first shown to the witness the letter, and having asked him whether he wrote that letter, and his admitting that he wrote it. For the contents of every written paper, according to the ordinary and well-established rules of evidence, are to be proved by the paper itself, and by that alone, if it is in existence." The court should also have instructed the jury that the statements of Mahaley Furl in this affidavit were not evidence against the defendant, and were only to be considered by them for the purpose of impeaching her testimony given on the trial, if made by her without being frightened into making them, and that they were not to be considered at all by the jury if she made the statements not because she believed them true, but because she was frightened into making them. There are some things in the record tending to confirm her story as to how this affidavit was obtained, and, while we think it was properly admitted in evidence, the court should have left the jury to determine whether it was obtained by fear and fright.

The statement of Melvin Warrick as to seeing the defendant with two bills and eight or ten dollars in silver in Bell county, and his statement that this was what carried him through, should not have been admitted.

A witness cannot be asked if he has been arrested at any time for an offense, or indicted, for the purpose of impeaching his testimony.

We see no other error in the record.

Judgment reversed, and cause remanded for a new trial.

Ky.App. 1901.
64 S.W. 954, 23 Ky.L.Rptr. 1191


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