197 Ky. 730 | Ky. Ct. App. | 1923
'Opinion of the Court by
Reversing.
Appellant was convicted in the Leslie circuit court of killing Robert Y7kitehead and sentenced to confinement in the state penitentiary for ten years. He has appealed, contending that the court did not instruct the jury on the whole law of the case, and that the verdict of the jury is palpably against the evidence.
The first ground mentioned pertains to the instruction on self-defense, which ought to have included, it is said, a definition of the defendant’s right to defend his family and home against the assaults of deceased and to
The second contention goes to the sufficiency of the evidence. In July, 1922, Whitehead, Levi Boggs, Henry Lewis and Sylvania Turner, all of whom had been drinking, left the latter’s place to go to Whitehead’s house over a route that passed through defendant’s yard. Lewis and Boggs were considerably under the influence of whiskey. In passing through the yard it was necessary to open two gates only a short distance apart. The way between the gates was a bridle path, but it had been used by the public for a great many years. There was a small porch in front of defendant’s residence and a path leading from the porch to the path between the two gates. The evidence shows that when Whitehead came to the ■first gate he either lifted the latch or tore it off and went into the yard, followed by Boggs; that he turned his mule loose and pi'oceeded in the direction of the other gate; but stepped off the path between the two gates into a path leading to defendant’s porch and when within a very few feet of the porch, the distance ranging from two to twelve feet according to the evidence, he was shot by defendant. Whitehead then walked out of the yard and lay on a rock for two or three hours until he was removed to the home of his father, where he died the next day. Boggs and Lewis left almost immediately after the shooting, apparently unaware of the serious nature of Whitehead’s injury.
Defendant was a deputy sheriff. He testified that he was sitting on his front porch with his wife and child; that Boggs and Whitehead appeared at his gate and the
Prior to the Act of March 23,1910, amendatory of section 281 of the Criminal Code, this court was without authority to review the rulings of the trial court on a motion for a new trial. But since the effective date of that amendment we have consistently held that if the verdict of the jury is palpably against the evidence a reversal for refusing to grant a new trial will be ordered. May v. Commonwealth, 164 Ky. 109; Allen v. Commonwealth, 176 Ky. 475; Ockerman v. Commonwealth, 176 Ky. 753; Martin v. Commonwealth, 178 Ky. 439; Peay v. Commonwealth, 181 Ky. 396; Miller v. Commonwealth, 182 Ky. 438; Williams v. Commonwealth, 182 Ky. 711; Cloninger v. Commonwealth, 191 Ky. 841; Kirk v. Commonwealth, 192 Ky. 460; Wells and Isaacs v. Commonwealth, 195 Ky. 740; Allison v. Commonwealth, 196 Ky. 140.
Under subsection 5 of section 271 of the Criminal Code it is the duty of the trial court to grant the defendant a new trial if the verdict of the jury be against the law or evidence, and it is the duty of this court to review the trial court’s ruling on that ground. The rule that requires a submission of a case to a jury where there is any evidence, however slight, tending to show the guilt of the accused must not be confused with the rule that requires the court to set aside a verdict of conviction if it be palpably against the evidence. Each has its distinct place and- there may be a proper application of each in the same case. One is as binding on the court as the other. Appellant has invoked on this appeal his right to protection against a verdict that he claims is palpably against the evidence. Looking to the evidence, and regarding the testimony of Boggs and Turner as of little probative value, as we are bound to do on a careful analysis of it, it is our conclusion that the contention must be sustained. We are reluctant to set aside the verdict of a jury on the ground that it is palpably against the evidence, but after a careful consideration of all the evidence in this case it is our deliberate conclusion that the lower court should have granted a new trial on that ground. The judgment is accordingly reversed.