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Leach v. Commonwealth.

night. On the Saturday previous the Clark woman went to Leach's house to visit her son, who had been there since the May previous, and she remained until after Gayle was shot, and was in the house with her son, Leach, and his wife when the shooting was done. About 10 o'clock on Monday night Leach said to John L. Butler, as he, Leach, and the deceased and his brother Bob Gayle were on their way home from Butler's store, where Leach and the Gayles had been transacting some business: "You tell Gayle that he has got to take that woman away from here right now." This message Butler at once delivered to Gayle. Mrs. Clark testified that, when Leach returned to his house from Butler's store, Gayle came with him, and said to her in the presence of Leach that he had come to take her away, and would be back after her in 15 or 20 minutes or as soon as he could hitch up his buggy; that then Gayle left, and in a short time came to the front door and knocked, when Leach said, "Who is there?" three separate times, and Gayle to each request replied: "Tom, it is 'Dutch' [Gayle's nickname]. Open the door." While this conversation between Leach and Gayle was going on, the witness testifies that Mrs. Leach and herself said to Leach, who had his gun in his hand, "Don't shoot; it is 'Dutch.'" But not withstanding this warning. and information, he fired through the door, which was closed, the shot taking effect in the body of Gayle, who was standing immediately outside on the porch. Leach's version of the affair is: That Monday afternoon Gayle took Mrs. Clark out buggy riding, and that night, on their return from Butler's store, Gayle, who was drinking, came to his house and said, "I am going to take this woman away," when he replied, "It would not do to take her away at night." To this

Leach v. Commonwealth.

Gayle answered, "All right," and then left, saying that he would see him in the morning. That Gayle did not with his knowledge or consent come to his house again that night. That during the night some person walked upon the front porch and scratched on the door, when the dog growled, and he heard the person say, "I'll shoot your brains out if you bite me." That he then asked three times who it was, and, not receiving any reply, fired, but did not know that it was Gayle he had shot until after he fired. Leach further testified that he had about $40 in his house, and that the night preceding the killing of Gayle a person unknown to him put paper in the door locks so as to prevent it from locking, and he felt some uneasiness about his money. From this brief history of the case it appears that there was ample evidence from which the jury might well conclude that Leach deliberately, wilfully, and without excuse or provocation shot and killed deceased. It remains to be seen whether or not the trial court committed any prejudicial errors of law.

Three alleged errors are relied on by his counsel: First, the failure of the trial court to permit witnesses to testify as to the relations that existed between the deceased and the Clark woman; second, in giving to the jury an instruction upon the subject of the insanity of the appellant; and, third, in failing to properly instruct the jury as to the right of Leach to shoot if he believed the person he shot was at the time attempting to break into his house or commit a felony.

Rebecca Clark, who was the chief witness for the Commonwealth, was not inquired of concerning her immoral intimacy with the deceased, but Bassitt and other witnesses introduced in behalf of the accused were asked if they knew what the relations between

Leach v. Commonwealth.

Mrs. Clark and Gayle were. The court refused to permit the witnesses to answer this question. What answer the witnesses would have made the record does not disclose, as no avowal was made. It would have been competent to have inquired of Mrs. Clark what the relations had been between herself and the deceased, and she might have been required by the court to disclose them, although improper; and this fact might have been shown independent of her by other witnesses if she was not questioned on the subject, or, if questioned, had denied the immoral relations. Morrison v. Commonwealth, 74 S. W. 277, 24 Ky. Law Rep. 2423. It is proper to permit, and, if necessary, to require, a witness to relate his or her relations with the parties to the litigation, and in Commonwealth cases, with the accused or the prosecuting witness, or the deceased if the prosecution is for homicide, for the purpose of showing his bias or prejudice or interest in the result of the trial, so as to enable the jury to place a proper estimate upon the weight that should be given to his evidence. We do not mean to be understood as declaring that a witness may be required to answer a question that would subject him to a criminal or penal prosecution, but the fact that the answer may degrade, disgrace, or humiliate a witness will not excuse him. Underhill on Criminal Evidence, section 248; Greenleaf on Evidence, section 450. This rule does not conflict with section 597 of the Civil Code of Practice, providing, among other things, that a witness may not be impeached by evidence of particular wrongful acts. Commonwealth v. Welch, 111 Ky. 530, 63 S. W. 984, 23 Ky. Law Rep. 151; Britton v. Commonwealth, 96 S. W. 556, 29 Ky. Law Rep. 857. Under the Code, as construed in these and many other cases, a party can

Leach v. Commonwealth.

not impeach the testimony of a witness by evidence of specific acts, with the exception mentioned in the section, supra. To ask a witness questions for the purpose of impeaching his credibility or morality is one thing, and to make inquiries that will show his interest, bias, or prejudice is another, although in some respects the end sought to be accomplished by each line of interrogation is the same. The impeachment of a witness is confined to his own life and character, without respect to his interest in the case or his relations to the parties to the controversy. The attack is made upon the witness as an individual independent of his interest or bias or prejudice in the case upon trial. On the other hand, the reputation of the witness for truthfulness or morality is not necessarily involved in inquiries made for the purpose of showing his feelings of kindness or hostility towards the parties or his social or family or business or other relations with them, although in instances like the matter we are considering inquiries along this line would reflect upon the character of the witness. But the purpose of the examination is not particularly to discredit the reputation of the witness for truth or morality as it is when he is sought to be impeached; and the rule that protects a witness attempted to be impeached from investigation into specific or particular acts in his life cannot be invoked to save him from disclosures touching his relations with the party in whose behalf he is testifying, although such disclosures may develop particular acts that have a tendency to degrade or disgrace the witness. As the record fails to show what answer Bassitt and other witnesses would have made to the question, the assigned error in declining to permit them to answer the question cannot be considered by this court.

Leach v. Commonwealth.

Nichols v. Commonwealth, 11 Bush, 575; L. C. & L. R. R. Co. v. Sullivan, 81 Ky. 624, 5 Ky. Law Rep. 722, 50 Am. Rep. 186. It may be remarked, however, that other evidence reasonably sufficient to convince the jury that immoral relations did exist between the Clark woman and the deceased was heard by the jury from other witnesses, so that the accused had before the jury substantially the same evidence that his counsel in their brief say would have been made by Bassitt and others.

Several witnesses were introduced by appellant who said that for a number of years he had been subject at intervals to epileptic fits, and that while under the influence of this disease he was prostrated mentally and physically but when he recovered from the effects of the disorder, which only continued for a few hours, he was not legally incompetent to form a criminal intent or commit a crime. But, as no evidence was introduced affecting the mental capacity of the accused at the time he killed Gayle, his counsel argue that the evidence relating to epileptic fits was offered only to show his weak condition generally, and not for the purpose of resting upon it an instruction upon the subject of insanity; and the complaint is made that the court erred to the prejudice of appellant in giving to the jury an insanity instruction. It may be conceded that the evidence introduced in behalf of appellant did not authorize the court to submit to the jury an instruction upon the subject of his mental soundness at the time of the homicide, but we are unable to perceive in what respect the giving of this instruction could have been prejudicial to the accused. It gave to him the benefit of an instruction he was not entitled to, under which the jury might have acquitted

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