191 Ky. 841 | Ky. Ct. App. | 1921
Affirming.
The appellant, Thomas Cloninger, at Baxter, a railroad station near Piarían, shot John Callahan to death. He made nse of a pistol, and discharged five .shots, and the result was the instant death of his victim. Each of the shots took 'effect, and one penetrated Callahan from his back. iCloninger having been charged with the crime of wilful murder, by indictment, upon a trial was found to be guilty by the verdict of the jury, and his punishment fixed at imprisonment during life. He 'was denied a new trial, and a judgment rendered iq accordance with the verdict, and from the judgment he has appealed.
While in his motion for a new trial, the appellant assigned Various alleged errors of the trial court as grounds for granting him a new trial, upon this appeal, he has abandoned all, but the alleged error in refusing to set aside the verdict of the jury upon the ground that the verdict is against the evidence, and is not supported by a sufficiency of evidence.
Formerly the well established rule was to refuse a new trial upon the ground that the verdict was against the evidence, if there was any evideq.ee 'which conduced to prove the guilt of the accused of the crime charged, but since the amendment of March 23, 1910, to section 281 of the Criminal Code, which authorizes this court to review the decisions of the trial court upon motions for a new trial, a decision upon the ground that the evidence was insufficient to support the verdict, is reviewable by this court. But, it has, also, consistently been held that a new trial will not be ordered by this court where the trial was fair, unless the verdict is palpably and flagrantly against the weight of the evidence. Wilson v. Com., 140 Ky, 1; Blanton v. Com., 147 Ky. 812; Lucas v. Com., 147 Ky. 744; Crews v. Com., 155 Ky. 122; Edmonds v. Com., 149 Ky. 242; May v. Com., 164 Ky. 112; Chaney v. Com., 149 Ky. 472; Black v. Com., 154 Ky. 144. In the latter case, it was said: “There is seldom a criminal case tried in which there is not sharp conflict in the evidence introduced for the Commonwealth and the accused, and we have adopted the sound rule of not interfering in criminal cas'es, or indeed in civil cases, with the finding of the jury upon the questions of fact, unless it affirmatively, and we might Bay, at first blush, appears that their
The appellant, by his brief, does not seem to contest the fact that the evidence was such as from which the jury might have properly found him to be guilty of voluntary manslaughter, but it is seriously insisted that there was no evidence, or at least not a sufficiency of it, to justify the jury in finding.him to be guilty of murder. A detailed statement of the testimony.of the various witnesses will not be attempted, nor is such necessary to indicate the basis of the opinion arrived at, but it is necessary to state the essential facts, to indicate the basis, of the theories of the Commonwealth and the appellant, respectively. The victim of the homicide was engaged in assembling a wagon near the depot at Baxter, and had been so engaged since the early morning of the day upon which he was slain at about half after eleven o’clock. Several persons, other than the accused, and the deceased, were about the grounds, but no one seems to have been giving his attention to Callahan, until attracted by the report of the first pistol shot discharged by the appellant. The accused resided with his son, Harmon Cloninger, about one-half mile from the depot. Harmon Cloninger and deceased were enemies, and exercised their dislike by causing each other to be arrested and tried for alleged offenses, three ór four times during the previous twelve months. Just two days before the homicide, Callahan had caused Harmon Cloninger to be arrested upon a charge of violating the laws prohibiting the sale of liquor, and at the trial before the magistrate, the accused was present and exhibited some feeling upon the subject. Two or three months previous to the homicide, the accused had remarked that if Callahan should “ cross his path” he Would kill him. On the evening before his death, Callahan stated to afi acquaintance that the Cloningers, father and son, owed him a debt, that he had given them a sufficient time in which to pay it, and that he was
Of course, before one can be guilty of murder, he must be actuated by malice aforethought in doing the acts which result in the death of another. This means, that a predetermination to kill, and that without lawful reason, must exist previous to the act of killing, but it is immaterial at what time previously the predetermination was formed, if it existed at the time of the killing. The existence of malice aforethought may be shown, by proof of threats, or may be inferred from actions of the accused, from the circumstances of the crime, and the man
The judgment is therefore affirmed.