Cornelius v. Commonwealth , 54 Ky. 539 ( 1855 )

Judge Simpson

delivered the opinion of the court—

The appellant was indicted for murder and found guilty. A judgment of conviction can only be reversed for the following errors of- law to the defendant’s prejudice, appearing on-,.the record. (Code of Practice in Criminal cases, sec. 334.)

1. An error of the Circuit Court in admitting or rejecting important testimony.

2. An error in instructing or in refusing to instruct the jury.

3. An error in failing to arrest the judgment.

4. An error in allowing or disallowing a peremptory challenge.

No objection to any of the proceedings in the Circuit Court, which does not come under one of the foregoing heads, can be relied upon in this court, or made available for the reversal of a judgment of conviction. Consequently, the action of the Circuit Court in overruling the motion for a new trial, so far as that motion was based upon the alleged fact that one of the jurors had expressed an opinion adverse to the prisoner, previous to the trial, of which he and his counsel were uninformed, until the trial was concluded, is not a proper subject of inquiry on this appeal.

2. Though, as a general rule, a witness cannot be examined to any fact which is collateral to the issue, merely for the purpose of contradicting him by other evidence if he should deny it, and thereby to discredit him, and if such question be put his answer cannot be contradicted by the party who asked, but are conclusive against him, yet questions which arq intended to ascertain the feelings of the witness to the prisoner may be asked; they may have an important bearing in determining the guilt or innocence of the accused. (1 Greenleaf, 500; 1 Starlcie, 190, and note C; Thomas vs. David, 2 Carr. 4' Payne, 350.)

But various questions were made upon the trial, in relation to the admissibility of testimony which was offered by the accused, and also by the commonwealth, and the decision of these questions, or some of them, it is contended, was erroneous and prejudicial to the accused.

James Moore, Sr., was introduced as a witness on on the part of the commonwealth, and gave important evidence against the accused. This witness, on his cross-examination, was asked, “if he had not ill feeling toward the prisoner,” to which he responded that he “had not.” He was then asked, “if he had not, during the present term of the court, at the shop of James T. Woosley, stated in the presence of Richard Owen and J. T. Woosley that he would come to court to testify against and hang the prisoner if he had to walk.” He denied that he had made any such statement. In the progress of the trial, the defendant introduced Richard Owen, and offered to prove by him that the witness, Moore, had made the statement attributed to him, and which he denied having made; but this testimony was rejected by the court.

As a general rule, a witness cannot be cross-examined as to any fact, which is collateral and irrelevant to the issue, merely for the purpose of contradicting him by other evidence, if he should deny it, thereby to discredit his testimony. And if such a question be put to a witness, his answer cannot be contradicted by the party who asked the question; but it is conclusive against him.

But a question which is intended to ascertain the feelings of the witness towards the prisoner, is not irrelevant. If a witness have expressed or entertains feelings of hostility towards the accused, the fact may have an important bearing in determining his guilt^or innocence of the crime with which he stands charged; and therefore the feelings of the witness towards the accused is a proper subject of inquiry. (1 Greenleaf, page 500; 1 Starkie, 190, and note C; Thomas vs. David, 7 Carrington and Payne, 350.) Consequently, the court erred in rejecting the testimony offered by the accused to contradict and impeach the witness, Moore.

3. In the trial of a prisoner charged with murder, he proved threats on the part of the person killed to kill him, which threats had been communica ted to the prisoner. He then offered to- pvove other threats not communicate d, which the court refused to admit. Held — that it was error to exclude such proof; its tendency was to confirm the proof of the threats already proved, and to show the intention of the deceased to attack the prisoner. 4. Where there is proof of a combination between the person slain and others to act in concert in any hostile meeting between the accused and the person slain, what any of the party said in regard to such eontem plated meeting is competent evidence. And if such statement be brought out on the interrogation of theprossecution the whole of the conversation at the time is competent evidence for the accused, but not statements at other times.

The prisoner introduced testimony to prove that Hopson, the man he had killed, had, a short time previously, made threats against him, and had tried to hire persons to kill him, which facts had been communicated to him before he killed Hopson. He then offered to prove by other witnesses that Hopson had threatened to kill him, which threats were made by him a few days before he was killed, but were not communicated to the prisoner, and on this ground were excluded by the court.

We think that this testimony should, under the circumstances in this case, have been admitted. It tended to confirm the other evidence, that Hopson had made threats against the prisoner, and to counteract a presumption of fabrication, by the witnesses who gave that testimony. Besides, Hopson’s intention to make an attack on the accused was an important matter, as well as the belief of the existence of such an intention, on the part of the prisoner.

The statements made by Joiner and Gus. Cornelius before the killing occurred, were competent testimony, inasmuch as there was evidence of a combination between them and the prisoner to act in concert, in any hostile meeting that might take place between them on the one side, and Hopson and his friends on the other. The commonwealth having asked for the statements made by Joiner, the prisoner had a right to all the statements made by him at that time, but not to the statements on the same subject he had made at other times, even during the same day. Nor did the proof made by the j ailer, in reference to the statements of the prisoner in his presence, authorise the production of the statements of the accused made at another time, although he made them when he was examined under oath as a witness.

5. The rejection, by the Circuit Court, of testimony offered by the accused in a criminal case, which was legitimate and calculated to have an important bearing in favor of the accused, is a ground for reversing the judgment of. conviction. The rule in civil cases that if the verdict is right upon all the facts, it should notbe disturbed, does not apply to criminal cases where the jury is to decide the facts exclusively in cases of acquittal.

The error committed by the Circuit Court, in rejecting evidence offered by the accused, authorizes a reversal of the judgment of conviction, inasmuch as the evidence rejected was important, and had a direct bearing on the question of the guilt or innocence of the accused. But it is contended that the judgment is right, upon all the testimony, even taking that which was rejected into consideration, and therefore it should not be disturbed by this court. This argument, although applicable to a civil action, where the court decides both matters of law and fact, cannot be allowed any weight in a criminal case, where the matters of fact are to be passed upon by the jury exclusively, in the case of a verdict of acquittal, and where, even in the case of a judgment of conviction, questions of law alone are decided by this'court. We do not therefore deem it necessary or proper to express any opinion on the guilt or innocence of the accused, when the whole of the evidence is considered. It is sufficient that testimony important to the defense of the accused was excluded by the court, whereby be was deprived of its advantage on the trial, and it will be for the jury to determine what effect it shall have upon their verdict, when considered by them as in connection with the other evidence in the cause.

Wherefore, the judgment is reversed, and cause remanded for a new trial, and further proceedings in conformity with the principles of this opinion.