Bowman v. Commonwealth

Opinion of the Court by

Judge Clarke

Affirming.

Charged with murder, appellant was convicted of manslaughter, and his punishment fixed at confinement in the penitentiary for 21 years.

*150Bor reversal lie urges that the court erred in overruling his demurrer to the indictment, in the admission of incompetent evidence, and in failing to admonish the jury as to the purpose and effect of impeaching evidence.

No defect in the indictment is suggested by counsel in brief, and we find no reason for criticising it, except for a redundancy, which in no wise affects its validity. There is therefore no merit in the first assignment of error.

Luther Cooper and a Mrs. Hayes were the first persons to reach decedent after he had been shot, and complaint is made of the fact the former was permitted to testify that, upon examining the body, he remarked, “His brains are shot out.” This undenied fact was competently established, and the admission of the above evidence could not possibly have been prejudicial, if its incompetency be conceded, and we need not consider that question.

After the shooting, defendant fled to Virginia, where he was arrested. Later Bony Hall, a deputy sheriff of Letcher county, Ky., brought him back and placed him in the Letcher county jail to await trial upon the charge of murder. Coming back, and as they passed appellant’s home, Hall asked him if he was not sorry for what he had done, and was permitted to testify, over appellant’s objection, that he replied he was not. The grounds upon which the incompetency of this evidence is asserted is that it was obtained from appellant by an officer having him in custody, in violation of section 1649b, Kentucky Statutes, known as the Anti-Sweating Act. But this is not true. There was no plying of defendant with questions to obtain evidence against him. Nor was the response to a single question elicited “by the allurements of hope or the agony of fear.” It was therefore voluntarily made, and is not rendered incompetent by the act, supra. Hathway v. Commonwealth, 82 S. W. 400, 26 Ky. L. R. 630; Commonwealth v. Long, 171 Ky. 132, 188 S. W. 334.

Nannie Bowman, appellant’s sister, testified for him to facts which in a measure excused, if they did not justify, his action, and, upon cross-examination, she was asked if she had not told Eosa Caudill and Linda McDaniels upon ,the day of the homicide, in substance, that defendant shot deceased for nothing, and she unavailingly tried to prevent him from doing it. She denied *151making the statements, and Rosa Caudill and Linda McDaniels were permitted, over defendant’s objections, to testify that she did make the statements upon the occasion referred to.

The ground having been properly laid therefor, we think the evidence of the two latter witnesses was clearly competent for the purpose of impeaching the testimony given by Nannie Bowman for the defense, but it was competent for that purpose alone, and the court failed to admonish the jury, as should have been done. This was error, .of course, but unless it was prejudicial to appellant’s 'substantial rights, we are not authorized to reverse the judgment because thereof.

Upon the evidence for the Commonwealth, appellant was guilty of murder without provocation or extenuating circumstances, and in reducing the crime to manslaughter, the jury, in our judgment, gave full credence and undue weight to his evidence and that of his witnesses.. Being so minded, we cannot say that appellant’s substantial rights were in the least prejudiced by the failure of the court to admonish the jury as to the purpose of the impeaching evidence.

Judgment affirmed.