CASE 71. — PROSECUTION AGAINST BENTON BROWN FOR HOMICIDE. — April 18.

#### Brown v. Commonwealth

Appeal from Monroe Circuit Court.

H. C. Baker, Circuit Judge.

Defendant convicted of voluntary manslaughter and appeals.

Affirmed.

1. Homicide — Evidence—Sufficiency—Evidence on a trial for homicide examined, and held to support a conviction of voluntary manslaughter.

2. Same — Harmless Error — Instructions—Where, on a trial for homicide, the jury found accused guilty of voluntary manslaughter, ias authorized by an instruction correctly defining voluntary manslaughter, any error in an instruction as to murder was not prejudicial.

3. Same — Voluntary Manslaughter — Instructions—Where, on a trial for homicide, the killing was admitted, and accused claimed that it was accidental, and the court charged that if accused intentionally, or in a wanton and reckless manner, without previous malice, discharged his pistol, and thereby killed decedent, a verdict of voluntary manslaughter should be found, the giving of an instruction that, if the accidental shooting was the result alone of the recklessly careless use of a loaded pistol by accused, a verdict of manslaughter should be found, and his punishment fixed as set in the previous instruction, was not open to the objections that it emphasized the effect of accused’s carelessness in handling the pistol, and that it was contradictory to the previous instruction, in that it omitted the word “voluntary” before the word “manslaughter.”

4. Criminal Law — Appeal—Review—Under Cr. Code, section 281, providing that the decisions of the court on motions for a new trial shall not be subject to exception, the Court of Appeals cannot reverse a conviction on a trial for homicide, ■ because the trial court refused a new trial on the ground that the jury were permitted to separate during the trial *627and were guilty of misconduct in viewing the premises where the homicide occurred, without the permission of the court and in the absence of accused and his counsel.

DUFF & HUTCHERSON, MILLER & JACKSON, SHERMAN, SPEAR and W. H. WALDEN for appellant.

1. We submit that instruction No. 2 as given by the court covers all the law on the subject of voluntary manslaughter.

2. Instruction “3a” given by the court qualifying instruction No. 2 is clearly erroneous and was highly prejudicial to the defendant.

3. Incompetent evidence was admitted as to statements made by defendant which had no connection with the killing.

4. The jury were allowed to separate, or did separate after they were sworn and the trial on the case commenced.

5. The jury after being permitted to view the premises where the killing occurred in the presence of the sheriff and court, was again permitted to view thie premises by the sheriff without the knowledge or consent of the court.

6. The evidence shows that the killing was accidental and the defendant should have been acquitted.

AUTHORITIES CITED.

Roberson on' Crim. Law and Procedure, vol. 1, page 235 and 254; Amer. & Eng. Ency. of Law, 1st Ed., 578; Rutherford v. Cometh, 78 Ky., 639 (1 Ky. Law Rep., 410); Abbott v. Cometh, 47 S. W., 576.

N. B. HAYS, C. H. MORRIS and BAIRD & RICHARDSON for appellee.

1. The appellant having, complained in the court below for the first time in his motion and grounds for a new trial, of the alleged misconduct of the jury, the ruling of that court therein is not subject to exception nor to review by this court. (Criminal Code, sec. 281; Brown v. Commonwealth, 14 Bush, 398; Kennedy v. Commonwealth, 14 Bush, 340; Ellis v. Commonwealth, 9 Ky. Law Rep., 825; Crockett v. Commonwealth, 10 Ky. Law Rep., 159; Van Dalsen v. Commonwealth-.)

2. The instructions given by the court' are aptly drawn and embrace the whole law of the case. (Brown v. Commonwealth, 13 Ky. Law Rep., 373; Gullegor v. Commonwealth, 2 Duv.,'163; Messer y. Commonwealth, 25 Ky. Law Rep., 700; Smith v. *628Commonwealth. 93 Ky., 318; York v. Comonwealth, 82 Ky., 366; Commonwealth v. Mathews, 89 Ky., 287.)

3. This court cannot reverse a judgment of conviction if there is any evidence to sustain it.

4. This court under Civ. Code, sec. 340, cannot reverse in criminal cases unless “upon consideration of the whole case the court is satisfied‘that the substantial rights of thie defendant have been prejudiced thereby.”

OpiNiok op the Court by

Judge Settle

— Affirming.

Appellant was tried in the Monroe Circuit Court under an indictment returned by the grand jury of that county which charged Mm with the willful murder of Jeff Harlan. By the jury’s verdict he was found guilty of voluntary manslaughter, and his punishment fixed at confinement in the penitentiary twlenty-one years. The lower court refused Mm a new trial, and he has appealed.

Appellant’s defense was accidental homicide. According to the evidence, Harlan was shot and killed by appellant at the door of the store of John Roton, in Tompkinsville, on the night of December 24, 1904. Appellant and deceased were about the same age, twenty-one years, had known each other from boyhood, and were apparently the best of friends. According to the testimony of John Roton, in whose store appellant was then employed as a salesman, the latter, in a conversation with Mm after the killing of Harlan, and as they were following the body to the hotel, to which it was removed, said: “I would not have killed Jeff for anytMng on earth. He was the best friend I had.” No motive for the homicide was shown upon the trial, unless it grew out of something that took place in a conversation between appellant and deceased in front of the store a few minutes *629before the, shooting, in the hearing of Little Crawford, who testified that appellant then remarked to Harlan1 that he was going that night to a popcorn party. Harlan said to' him, “If I were yon, I would not go, for you are drinking,” to which appellant replied, “he did not care a damn what he did.” As Crawford then went into the store, he heard no more of the conversation, if it was continued. There is no doubt from the evidence that appellant was to some extent under the influence -of intoxicants that night and at the time of the shotting; indeed, he admitted it when testifying in1 his own behalf, and after the shooting he evidently become more intoxicated, for he testified that after following the body of Harlan to the hotel he knew nothing of what happened during the remainder of the night, though he was afterwards arrested and put in jail.

There were several things said and done by appellant immediately after the shooting that appeared to be inconsistent with his innocence; for instance, though numerous inquiries were made in his presence by individuals of the gathering crowd as to the identity of the slayer of Harlan, he made no reply, and upon being directly asked by several persons, among them a brother and sister of deceased, who had shot him, he said he did not know, and in reply to one or two of these inquiries he said deceased must have been shot by a stray ball, as he was not shot from the store, and, furthermore, that, if the shooting had occurred from the store, it would have been manifested by powder smoke in the store. These statements, attributed to him, appellant denied; but we think the great weight of the evidence was to the effect that they were made by him, and *630that be did not ini fact admit Ms identity as thie slayer of Harlan nnitil tire pistol with which he did the shooting was found by Roton, with one of its chambers containing an empty shell, and still warm from the firing of the shot. Although there were several persons besides appellant in the store at the time of the killing of Harlani, nearly all of them were at the rear end of the room, and it is a singular fact that not one of them claimed to have seen the shooting, though all heard the report of the pistol. Two or three of them, upon hearing the report, looked' toward the front door, and' saw appellant standing with-Ms back to- thelm and his face to the door. At the time one Bert High was in front of appellant, holding him- by the shoulders. As High was the. only witness near appellant when he shot Harlan, we here quote from the record the material parts of his testimony: “I was in Roton’s store when Harlan was killed. Myself and1 Brown (appellant) were the only persons present. When the pistol was discharged1, Harlan was.in two and one-half or three feet of Brown. The defendant carne around there with the pistol. I said to him, ‘What are you-going to do?’ He said he was going to shoot. I asked him if it was loaded. He said he reckoned it was. if he got hold of the right one. I said: ‘You must not do that. They are liable to pull you.’ I guess then in about a minute Harlan stepped to- the door, and he said, ‘D.o not shoot.’ About the time he said, ‘Do not shoot,’ I turned and looked down, toward-the other end of the store. About the time I looked dowtn there "the pistol fired. I do not think he intended to shoot Harlan. I saw) Harlan, and knew ham1 when he spoke. The light was shining out at the door. I *631was facing the door, and Brown’s right side was turned towards the end of the counter. After the shooting, I laid my hands upon Brown’s arms. I am not related to either party, but was friendly to both. The last I saw of the pistol before it fired, Brown,' had it down by his side.” The fact that Harlan was close to appellant when shot was demonstrated by the powder burns on his face. He must have been shot, too, while in the act of talking to appellant, as the pistol ball entered his mouth without touching his, lips or teeth, severed the spinal cord, and broke the neck at the base of the brain. According to the testimony of Dr. Duncan, a skilled surgeon, Harlan’s death must have been instantaneous.

Appellant testified in his own behalf to the effect that he and deceased Were intimate friends, and that no trouble or misunderstanding had ever arisen between them; that on the night of the homicide no such conversation occurred between them as was related by Crawford, though he admitted that he and deceased were together out in front of the store when Crawtford made his appearance; that he had with Crawtford the conversation about some article he wished to purchase from the store; as testified by the latter; and that, leaving deceased in front, he and Crawford went into the store to get the desired article, after which appellant went out of the store, took a drink of whisky with Crawford, then returned, and had a talk with Harlan, who had in the meantime entered the store. According to¡ appellant’s further statement he then went to where two- pistols were kept under the counter one- out of repair and unloaded, and the other loaded and in proper condi-' tion for use, and getting, as he believed, the unloaded *632pistol, he walked toward and near the door carrying it in his right hand. What he said will better appear from appellant’s own language:: “Bert High then asked if the pistol was loaded, and I told him it was, and I thought I would go out and shoot it off. Seeing this seared him, I told him it was not, and I thought it was not. I took hold of the pistol to show him it was not, and at this juncture it w|as discharged, and killed Harlan, who I did not see, just as he was about to enter the storehouse. It went off accidently, and if he (Harlan) said, ‘don’t shoot,’ I did not hear him. I saw some one just after the pistol went off sinking down-. I wlas greatly excited, and asked what it was, for I did not know who it was.” The case was properly allowed to go to the jury. There Was some testimony conducing to prove that the shooting was intentionally or wantonly and recklessly done by appellant, and some that it was accidental; but the jury, having weighed all the evidence, came to the conclusion that appellant’s defense of accidental killing was without merit, and therefore found him guilty of voluntary manslaughter. Their finding is conclusive of the question of his guilt, unless there was some error of law committed by the trial court which can be said to- have prejudiced his substantial rights.

Appellant insists that the lower court erred in instructing the jury, and in refusing certain instructions asked by him. The instructions complained of are numbered 1 and 3a. The first advised the- jury in what state of case they might find appellant guilty of murder. It is properly worded, and, if this were not true, it could not have been prejudicial, because it did not influence the jury; for they found appellant guilty of voluntary manslaughter as authorized *633by instruction No 2, ■which wlas as follows: “If the jury believe from the evidence beyond a reasonable doubt that the defendant, Benton Brown, in said county and before the finding of this indictment, intentionally or in a wanton and reckless manner, without previous malice, fired off and discharged his pistol, and thereby shot and killed Jeff Harlan, they will find him guilty of voluntary manslaughter, and fix his punishment at confinement in the penitentiary for not less than’ two nor more than twenty-one year's.” By instruction No 3 the jury were told that if they believed from the evidence that the discharge of the pistol in the hands of the accused was unintentional, but further believed from the evidence beyond reasonable doubt that the killing of Harlan resulted from the careless use and handling of the pistol by the accused, they should find him guilty of involuntary manslaughter, and fix Ms punishment at a fine in any amount, or confinement in jail any time, in their discretion, or might in their discretion both so fine and imprison Mm. Instruction No. 4 told them that in the event they believed from the evidence beyond a reasonable doubt that appellant wjas guilty of one of the several offenses defined in the instructions, but should have a reasonable doubt as to the degree of the offense, it was their duty to find him guilty of the lesser one. By instruction 5 the jury were further told that if they believed from the evidence the killing of Harlan was accidental, and without carelessness upon the part of appellant, they should find him not guilty, or, if they had a reasonable doubt of Ms having been proven guilty, they should acquit Mm.

As the killing of Harlan was admitted by appellant, *634and there was no d'aim of self-defense, we think the foregoing instructions embraced and properly presented to the jury all the law of the case; but yet another instruction, numbered 3a, was given by the court on motion of the Commonwealth’s attorney, which' advised the jury “that although 'they may believe from the evidence before them that the shooting and killing of Jeff Harlan was accidental, yet if they further believe from the evidence to the exclusion of a reasonable doubt that said accidental shooting and killing (if it was accidental) was the result alone of the recklessly careless use of a loaded, deadly pistol by the defendant, they should, notwithstanding the accident, find the defendant guilty of manslaughter, and fix his punishment as set out in instruction No. 2.” It is contended by counsel for appellant that this instruction is contradictory of those already given, as to voluntary and involuntary manslaughter, and SO' reiterated and emphasized the effect of appellant’s carelessness: in handling the pistol as toi minimize the question of accidental shooting and deprive him of any benefit from the evidence in regard thereto-, and, besides, that the instruction was confusing to the jury because of the use of the term “manslaughter” without the limiting adjective “voluntary. ’ ’

We do not think the instruction in question pre^-judiciai. It, as well as instruction No. 2, correctly defined voluntary manslaughter,- though the wiord “voluntary!’ is not used in No. 3a. In Montgomery v. Com., 26 Ky. Law Rep., 356, 81 S. W., 264, it is said: “It is essential to the commission of voluntary manslaughter that the homicide should have been Willfully and intentionally committed, or under such *635circumstances as to strike one at first Musk as so reckless and wanton1 as to be felonious, though: apparently not intended by the perpetrator.” Bishop’s New Criminal Law, vol. 1, section 314, says: “Every act of gross carelessness, even in the performance of what is lawful, and a fortiori of what is not lawful, and every negligent commission of a legal duty whereby death ensues, is indictable either as murder or manslaughter.” In York v. Com., 82 Ky., 360, 6 Ky. Law Rep., 334, we find this statement on the same subject: “It may now be regarded as well settled in this State by numerous decisions of this court that where one intentionally does an act in such a reckless and careless manner that it is calculated to endanger human life, and death ensues, he is guilty of manslaughter, although the death of the person killed may not have been intended.” Smith v. Com., 93 Ky., 318, 14 Ky. Law Rep., 260, 20 S. W., 229. So, if, as the jury were told in instruction No. 2, appellant “intentionally, or in a wanton and reckless manner,” discharged his pistol, and thereby killed Harlan, or if, as stated in' instruction 3a, the latter’s death, though accidental, “resulted alone from appellant’s recklessly careless Rise of a deadly loaded pistol, in either even he was guilty of voluntary manslaughter, and the omission from instruction 3a of the Word “voluntary” could not have misled or confused the jury, as the "fact that instruction 3a referred the jury to' instruction 2 for the punishment to be inflicted upon appellant in the state of case therein predicated must have indicated to' them that the offense described in 3a was voluntary manslaughter, as defined in instruction *No.*2, and that they so understood it is demonstrated by the further *636fact that the verdict named the crime of which they found appellant guilty “voluntary manslaughter.”

In Spriggs v. Com., 113 Ky., 724, 24 Ky. Law Rep., 540, 68 S. W., 1087, after a review of all the authorities in this State, it was held: ‘‘ The cases cited seem amply to sustain the proposition that, under our law, the common-law offense of manslaughter has been subdivided by carving out of it the statutory crime of voluntary manslaughter, and leaving involuntary manslaughter to be dealt with as at common law. The term ‘manslaughter’ has, therefore, become a generic term, covering two specific offenses or degrees of homicide, punishable, the one under the statute, by confinement in the penitentiary, and the other under the common law, by fine and imprisonment in jail. The common-law learning of the text-writers upon the offense of manslaughter can have no place in the definition of the'two' deg'rees of homicide which have been carved out of manslaughter by the effect of our statute, however apt such learning may have been under the ancient practice, when the punishment of both grades was a matter resting in the discretion of the judge. ’ ’ The conclusion stated in the opinion supra Was deduced from the cases of Connor v. Com., 13 Bush, 714; Buckner v. Com., 14 Bush, 601; Trimble v. Com., 78 Ky., 176; Bush v. Com., 78 Ky., 268; Smith v. Com., 93 Ky., 318, 14 Ky. Law Rep., 260, 20 S. W., 229; Com. v. Matthews, 89 Ky., 287, 11 Ky. Law Rep., 505, 12 S. W., 333. But it is conceded by the learned writer of the opinion that the distinction asserted is ignored by the court in the following cases: Sparks v. Com., 3 Bush, 111, 96 Am. Dec., 196; Chrystal v. Com., 9 Bush, 669; York *637v. Com., 82 Ky., 360, 6 Ky. Law Rep., 334, and perhaps others

It is, however, clear that none of the cases referred to hold that if a person intentionally, or wantonly and recklessly- discharge a pistol in a store, street, or other public place where people are wo-nt to be or congregate, and death thereby results to one of them, such killing would not be voluntary manslaughter, punishable by statute by confinement in the penitentiary from tWoi to twenty-one years- It is likewise true that they contain nothing that impairs the common-law definition of involuntary manslaughter or that questions the propriety of inflicting upon one guilty of that offense the punishment' of a fine, or imprisonment in jail, either or both, as by the common law provided. As already stated, the court might safely have omitted instruction 3a; but, as it was ,in substance-but a repetition of instruction No-. 2 as to voluntary manslaughter, the error in giving it was harmless. The first of the two- instructions refused appellant by the court might properly have been given; but, as what both were intended to express to the jury was better presented' by the one instruction given on appellant’s motion, it was not error to refuse them.

It is insisted for appellant that the court erred in refusing him a new trial upon the ground that the jury were permitted to separate during the trial, and were also' guilty of misconduct in going upon and viewing the premises where the homicide occurred without permission of the court, and in the absence of appellant and his counsel. As to the first complaint, it appears from an affidavit in the record that on one occasion during the progress of the trial one *638of tixe jury lingered behind the others as they were leaving the court-room in charge of the sheriff. This juror was momentarily separated from the other eleven, and passed a few words with some person in the courtroom; hut the sheriff soon discovered his absence, and at once returned with the remainder of the jury and took him in charge and1 away with them. It does not appear from the record that the juror thus briefly separated from his associates talked with any one about appellant’s case, or to any one connected with it, and the attention of the court was never called to the fact of his separation from the other jurors until the matter was presented by the motion and grounds for a new trial. The facts as to the inspection of the place of the homicide were that, though the jury at the beginning of the trial had been allowed, in the presence of the court and appellant, and while in the charge of the sheriff, to view the premises-, on Sunday and after the conclusion of the evidence they again viewed them under the charge of the sheriff, but without the permission of the court. It is unnecessary to determine the legal effect of this- action of the jury, as it was not brought to the attention of the court until the filing of the motion and grounds for a new trial, though the same, as well as the momentary separation of one of the jury from the others, was known to appellant before the submission of the case to the jury.

It is, however, beyond our power to reverse this case for such errors as these; the right to- do so being expressly denied by section 281, C'r. Code, which this court has repeatedly construed to be mandatory. Howard v. Commonwealth, 118 Ky., 1, 80 S. W., 211, 25 Ky. Law Rep., 2213; Curtis v. Commonwealth, 23 *639Ky. Law Rep., 267, 62 S. W., 886; Brown v. Commonwealth, 14 Bush, 398; Kennedy v. Commonwealth, 14 Bush, 340. Our examination of the record fails to disclose any error on the part of the trial judge in the admission or rejection of evidence.

Judgment affirmed.