10 Ky.L.Rptr. 178
Court of Appeals of Kentucky.
PEARCE v. COMMONWEALTH.
June 16, 1888.
ACTION:


Appeal from circuit court, Knox county.
Indictment for murder, against Richard Pearce, T. J. Henderson, Joseph Henderson, and Alvis Turner.
Defendant Pearce was separately tried, found guilty, and appealed.

LEWIS, J.
Section 121, Crim. Code, provides that "the indictment must be presented by the foreman, in the presence of the grand jury, to the court, and filed with the clerk, and remain in his office as a public record." The transcript before us shows an entry of record in this case in these words: "The grand jury appeared in open court, and by and through their foreman made the following report;" which was followed by the entry of the style of an indictment for murder against appellant and the others indicted jointly with him. At the same time the following entries were also made: "On the back of said indictment is the following indorsement, viz.: 'A true bill. WILLIAM WORTH, Foreman.' And: ' Received from the foreman of the grand jury, in the presence of the grand jury, and filed in open court."D' It seems to us the Criminal Code has been in every respect substantially complied with; for there can be no uncertainty or doubt of the indictment under which appellant was tried having been duly presented to the court, and filed with the clerk.

Howard Monroe was, about a half hour after dark, shot through a window of the house of John Myers, where he was at the time a visitor, and killed, and appellant, T. J. Henderson, Joseph Henderson, and Alvis Turner, were jointly indicted for the murder; a conspiracy between them being charged. It appears there had, for some time previously, existed in the county of Bell, where the crime was committed, a feud between two factions, the leaders of which were, respectively, Jack Turner and Sanders, by reason of which several persons had been killed; Jack Turner being one of them, having been shot in the town of Pineville from the house of Alex. Monroe, an uncle of Howard Monroe. The four defendants were cousins, three of them being nephews and one a son of Jack Turner, and all of them partisans of the faction of which he was the leader until his death. But the deceased was not a member of either faction, had not taken any part in the feud, nor, so far as the evidence shows, had there ever been any enmity or even intercourse between him and appellant before he was killed. The only one of the four persons indicted who it appears had any ill feeling at all against him, or personal reason or motive for taking his life, was T. J. Henderson, who, the evidence tends in some degree to show, was jealous of him by reason of attentions paid by him to a young lady. But it seems to be conclusively shown that he did not actually commit the deed, being, at the time the shots were fired, in another part of the Myers house, where he lived, eating his supper; nor did either Joseph Henderson or Alvis Turner, according to the evidence, do the shooting, for they likewise established an alibi by a witness introduced by the commonwealth. Appellant also was away from the scene of killing, according to the testimony of his relations; but the jury seems to have disbelieved them. If appellant be guilty, the motive or incentive for the deed must have been the remorseless and blood-thirsty spirit which had been engendered by the feud between the factions, or that he was hired by T. J. Henderson, which seems to be the theory of the prosecution, and in support of which there was evidence regarded by the jury sufficient to authorize conviction. The evidence is, the four defendants had been for some time associating and going together armed, and were seen in company, on the premises of Myers, the day Howard Monroe was killed, though he was at the time absent, in company with the young lady referred to; and they were together at the same place next day after the killing. Two men were seen near the house of Myers a short time before the killing, who, from the suspicious circumstances detailed by the witnesses, were anxious to avoid recognition; and a witness testified one of them looked like T. J. Henderson, and stated facts tending to show it was he. And one witness, John Crook Turner, who had belonged to the Jack Turner faction, testified the appellant confided to him he had killed Howard Monroe, firing two shots at him, and that T. J. Henderson had agreed to give him a suit of clothes, $20, and a pistol to do the deed. And that testimony was corroborated by the evidence of another witness, who testified that on Saturday, the day of the killing, he loaned his pistol to T. J. Henderson, who offered to buy it, and asked him what he would have to pay if it was not returned; that the next day he saw the pistol in the possession of appellant, who told him he had bought it from Henderson, whom he would have to see about it; that he went with appellant to where Henderson was, and, insisting upon the return of his pistol, appellant, after having a private conversation with Henderson, did return it, but gave him two less cartridges than Henderson had gotten from him, and appellant then had in his possession a $20 bill. The commonwealth was permitted to prove, the appellant objecting, that, the next day after the crime was committed, T. J. Henderson was hunting cartridge hulls, giving his opinion as to where, near Myers' house, they should be found, and that he did pick up one which the witness stated he did not think had been recently fired. It was proved that Jo Henderson was also, on the day after the killing, hunting cartridge hulls, of caliber 45, and one witness testified that he gave to him some hulls which he (witness) had some time before picked up and carried home, and that he next saw them at the examining trial of the parties charged with killing Howard Monroe. It is true, the conversation and conduct of the Hendersons took place after Monroe was killed, and without the presence of the appellant; but it does not appear what the object of the prosecution was in introducing the evidence, nor do we see how it could have affected appellant one way or another. The only effect it could have had was to create a suspicion that T. J. and Joseph Henderson themselves were the guilty parties; but we do not perceive how even that could have been, because it does not appear to us how the cartridge shells could be used to fix the identity of the assassin. The evidence, though incompetent, did not, therefore, we think, prejudice the substantial rights of the appellant.

The copy of an indictment for killing Thomas, against the appellant and others, which was in the Bell circuit court, though improperly permitted to go to the jury, was subsequently, and before the conclusion of the evidence for the commonwealth, withdrawn by the court, and the jury were told they had no right to consider it for any purpose in making their verdict. We have no right, therefore, to presume that appellant was prejudiced by reading that indictment; for to do so requires the assumption that the jury disregarded their duty and their oath to try the accused according to the evidence. It was not competent to prove, by the witness called for the defense, what he heard Sanders, the leader of one of the factions, say in regard to the killing of Monroe; and the objection of the attorney of the commonwealth was properly sustained. Nor did the evidence introduced by the prosecution as to where Sanders and his gang were when the killing took place render hearsay evidence in behalf of the defendant competent. We think there was evidence tending strongly to show that not only T. J. Henderson, but also Joseph Henderson, conspired with appellant to murder Monroe; and the court did not, therefore, in our opinion, err in refusing to permit them to testify; and, as to T. J Henderson's complicity with the appellant in the killing, we think the evidence was such as to satisfy the court. Moreover, Alvis Turner was introduced as a witness for appellant, and accounted for the way in which the two cartridges were used that appellant failed to return to the owner when the pistol was given up; and that is the only fact exculpatory of appellant that it is contended in argument Joseph Henderson would or could have testified to, having such bearing, for he was not present at the time the killing was done. No objection is made to the instructions of the court to the jury, nor do we see any.

In our opinion, no error of law prejudicial to the substantial rights of appellant occurred at his trial, and the judgment of conviction must be affirmed.

Ky.App. 1888.

PEARCE v. COMMONWEALTH.

8 S.W. 893, 10 Ky.L.Rptr. 178



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