154 Ky. 30 | Ky. Ct. App. | 1913
Affirming.
Defendant, Brown Begley, was indicted for the murder of Jesse Barger. A jury found him guilty of voluntary manslaughter and he was given an indeterminate sentence of from two to twenty-one years in the penitentiary. From the judgment of conviction he appeals.
The homicide took place under the following circumstances: Defendant, John Deaton and Jesse and Henry Barger were pitching horseshoes near a storehouse belonging to John Deaton. Defendant and Henry Barger were partners, while Deaton and Jesse Barger were partners.' At the end of each game the losers would set up to cider. When defendant came to the Deaton store in the afternoon he carried a pistol in a holster around his waist. When the playing began he left the pistol in the store. According to the evidence of Henry Barger, a brother of the deceased, there was a dispute as to who won the last game. Jesse Barger claimed his shoes were the closer, the defendant claimed the contrary. Jesse Barger said “Maybe, you will give me the lie over it.” The defendant told him that he was a liar. Jesse Barger then said “Ton are a lying son of a bitch.” Defendant said “I won’t take it,” and started down the road toward the storehouse. He went into the storehouse and came out “with his pistol and her cocked and his fingers on the trigger and hold of her this way.” He had hold of the pistol with both hands. When defendant came out of the store John Deaton grabbed at him and missed him. Garrett Bowling then grabbed defendant. Witness and John Deaton® then began to strike and throw each other around. John Deaton threw witness on the ground. Just after he caught John Deaton the last time the pistol fired. When witness arose defendant and Jesse Barger both had hold of the pistol. Jesse said “give me the pistol.” He also said “He shot me.” When Begley came out of the door Jesse Barger was from thirty-five to forty feet away. He started toward the store with two horseshoes in his hand. At the time Jesse Barger was shot he did not have either of the horseshoes in his hand. According to John Deaton, Henry Barger himself told defendant to get his pistol, saying “we won’t take this.” The deceased, Jesse Barger, said, “If you want to fight, you can fight us a fair fight; we haven’t got any pistol; you needn’t go and get your pistol.” Defendant went into the
The defendant testified to the fact that they were all engaged in pitching horseshoes. His side won and they started to set up to cider. Jesse said “they had beat us.” Witness then went into the storehouse, thinking that they were all coming in. He got his coat and hat and pistol and walked out. John Deaton and Garrett Bowling both seized him and began to scuffle around with him. They had him bent over. At that time Henry Barger was cursing and saying that “he wasn’t going to set up the cider.” He never even saw Jesse Barger when the pistol went off. He never shot the pistol. He never attempted to raise the pistol or to shoot it. He had brought his pistol there and left it in the storehouse and went there to get it for -the purpose of taking it. home. Before he went into the storehouse, he and Jesse had some words. They gave each other the lie and something else. The pistol he had was a forty-five, and he carried it in a hip holster. When the pistol went off he felt no rebound from it; couldn’t even say that the pistol was in his hand. Lizzie Deaton says that the defendant and deceased had a dispute about the game. Defendant then started toward the store. When he got about half way he said “All of you come on” and laughed. She never saw defendant go into the store. The next time she saw him both John Deaton and Garrett Bowling had hold of him. Henry Barger struck John Deaton, and about that time the pistol went off.
The court instructed the jury on murder, voluntary manslaughter, accidental shooting, and reckless handling of fire arms. Defendant claims that the court erred in giving an instruction on the reckless handling, of fire arms, and in failing to give an instruction on involuntary manslaughter. The evidence in the case leaves no doubt that defendant was called a vile epithet by the deceased. .There is a conflict in the evidence as to whether defendant said he wouldn’t stand for that, or whether Henry Barger remarked that they wouldn’t stand for it and told him to go get his pistol. At any rate, defendant immediately went for his pistol, which was in the storehouse. He came out with his pistol, according to some of the witnesses, in both hands, and according to others, in his right hand. The pistol was not in his holster. The evidence leaves no doubt that the pistol was cocked for it was of the kind that would not go off unless cocked. Though claiming that he did not fire the pistol and that he did not intend to shoot the deceased, but that the shot was the result of an accident occasioned by the fact that he was being held by others, the fact nevertheless re
Judgment affirmed.