145 Ky. 409 | Ky. Ct. App. | 1911
Opinion op the Court by
Reversing.
Sam Allen was indicted in the Lee Circuit Court on the charge of maliciously shooting at Sampson Taylor with intent to Mil. On a trial of the case he was found guilty by the jury aüd his punishment was fixed by the court at confinement in the penitentiary from one to five years. He appeals.
"When the case was called for trial he filed an affidavit for continuance on account of the absence among others of Silas McIntosh, Betty Gibson and Laura Allen by whom, he stated, he could prove, that Taylor fired at him before he fired at Taylor. The court refused to continue the case and also refused the affidavit to be read as the deposition of the absent witnesses. An attachment had issued for Laura Allen and McIntosh. They were both residents of Lee county. The attachment had been served on Laura Allen and she had éxecuted bond for her appearance, but was sick and unable to travel. McIntosh was not found. The attachment was issued on June 28th. The trial was had on July 3. As to Laura Allen the defendant had done all that could be done, and her absence was due to her sickness. As to McIntosh, if the defendant had taken out his process sooner, no doubt it would have been executed. There was a want of diligence in not sooner taking out the process for him. As to Betsy Gibson, the defendant had asked the clerk to issue the process and he had promised to issue it, but had failed to do so. There was a want of diligence as to her. He should have seen to it that the process was issued. The case had been continued for the defendant at the last term. The proof for the Commonwealth on the trial was to the effect that Sam Allen shot at Taylor when Taylor was sitting on a log unarmed and making no effort to hurt him. On the other hand, the proof for the defendant was that Taylor shot at him and that he then shot at Taylor; that he was on his own land and
Judgment reversed and cause remanded for a new trial.