83 S.W.2d 46 | Ky. Ct. App. | 1935
Affirming.
Lewis Combs has appealed from a sentence of life imprisonment imposed upon him for the murder of Floyd Williams.
On Saturday, June 13, 1931, old man Lewis Holliday invited his neighbors to gather in and hoe out his corn. They came and worked until about 4 p. m., when they were invited to the house for supper. There seems to have been both plenty to eat and plenty to drink, and as a result of the latter some minor brawls occurred. Lewis Combs had one with Sherman Dobson; they were separated by Calloway Napier; and Floyd Williams, who lived in this Holliday home, picked up a club and ran Lewis Combs off the place. Combs went to the home of his uncle, Hiram Napier, and after spending about a half hour there, he and his younger brother, Elbert Combs, came back, and the son of Floyd Williams testified this occurred:
"He walked up and says, 'They said you are the one that hit me, wasn't you, Floyd?' Daddy says, 'No, I didn't hit you, Lewis,' and Lewis says, 'I knew they told a lie on you,' and he said, 'Let's go in the house and talk a while,' and they went in the house and he asked Daddy if he had a gun to trade on and Daddy said, no, there wasn't a gun on the place and he searched Daddy. He told him, 'Let's go in the back yard and talk a while,' and they went in the back yard."
The witnesses for the commonwealth say that as soon as they got out in the yard the shooting began, that Lewis Combs first shot Orlena Holliday twice, which killed her, then turned on Floyd Williams and shot him four times, and he died. Calloway Napier who had mounted his mule and left when the shooting began *705 was, so he testified, pursued by Lewis Combs after this shooting was over.
The account given by Combs and his brother is that they had started past this Holliday home on their way to their home when they were called in by Floyd Williams, and soon a racket started. Williams kicked Lewis Combs out the house and was endeavoring to shoot him when Lewis Combs, in self-defense, drew his pistol and began shooting Williams, and that the balls that entered the body of Orlena Holliday and killed her were fired at Williams and either passed through or by his body and struck and killed her standing behind him. No weapon of any kind was found on or near either the dead man or the dead woman.
"Now comes the defendant and moves the court to admonish the jury that they are not to consider any of the evidence introduced in this case or any statement of any witness introduced by the commonwealth and the defendant as to the killing of Orlena Holliday. The court, being advised, overrules the said motion to which the defendant excepts."
Combs now argues that is error and cites in support thereof Roberson's Criminal Law, sec. 1793, notes 11 and 12. If the killing of this woman had been entirely disconnected as to time and place from the killing of Williams and had only been introduced to show identity, guilty knowledge, intent, motive, plan, or system as pointed out in Cook v. Com.,
The appellant insists he was entitled to an instruction allowing him to shoot and kill these people in defense of his brother Elbert Combs, but there is not a line of evidence which shows, directly or by reasonable inference, Elbert Combs was in any danger whatever; hence no such instruction was necessary.
"Comes the defendant and says he has been tried and a jury passed on his guilt for the killing of Floyd Williams, and he now refers to the records of this court as a part of this motion and pleads a former trial and acquittal as a bar to this prosecution."
During the course of the trial this agreement was made and noted in the transcript:
"The indictment against the defendant, for killing Orlena Holliday and the order showing the trial and the acquittal of the defendant upon that indictment and the instructions of the Court given upon that trial are to be considered as part of the record in this case."
It seems the defendant had theretofore been tried for the murder of Orlena Holliday and acquitted and he was by the foregoing seeking to rely on that acquittal in bar of this prosecution. He has brought here nothing relative thereto except what we have copied above, and of course from that he cannot show the court erred in disregarding his plea. The steps taken in Rogers v. Com.,
"C.C. Hurt was sworn and questioned upon voir dire examination by the court, who tried this case, and by the attorney for the commonwealth, and by the attorney for the defendant herein, and that the said Hurt stated in direct answers to questions propounded to him by the court and said attorneys that he was not related by blood or marriage, or by consanguinity or affinity to the defendant or to the deceased, Floyd Williams."
It now turns out, so he says in his motion and grounds for a new trial, that a sister of Hurt's mother married a brother of Floyd Williams. The court, in the order overruling the appellant's motion and grounds for a new trial, gave him permission to file affidavits relative thereto, but none were filed, so we must presume he was *708
unable to find proof to sustain this charge. If he had found it, would it have been grounds for reversing the judgment? See Cox v. Com.,
The judgment is affirmed.