Fannin v. Commonwealth, 200 Ky. 635

200 Ky. 635 | Ky. Ct. App. | 1923

Opinion of the Court by

Judge Moorman

Affirming.

Appellant was charged in the Perry circuit court with the murder of Sam G-ayheart, and on the trial was convicted of manslaughter and sentenced to serve ten years in the penitentiary.

The first ground urged for a reversal of the judgment is that the trial court erred in refusing to grant appellant a continuance because of absent witnesses. In support •of the motion for a continuance appellant filed his affidavit showing what the absent witnesses would state. The court overruled the motion but permitted appellant to'read the affidavit as the testimony of the witnesses. The contention is that the full effect of the testimony of these witnesses -could not be had except by an oral examination in -court, and consequently it was error to overrule the motion for a continuance.

It has often been stated by this court that a judgment will not be reversed for refusing a continuance unless from all the facts and circumstances appeáring in the record there was a manifest abuse of discretion by the trial court. Owen v. Commonwealth, 181 Ky. 257; James v. Commonwealth, 190 Ky. 458; Brown v. Commonwealth, 195 Ky. 166. The evidence of the absent witnesses in this case was corroborative of other testimony introduced by appellant. It was placed before the jury in the form of an affidavit. In these circumstances and from a consideration of the entire record we are unable to say that there was an abuse of discretion in overruling the motion.

The second contention is that the verdict of the jury is palpably against the evidence. The evidence shows that appellant was employed at Duane by the proprietor of a restaurant and pool room, and on the morning of the killing the deceased had been engaged in playing pool and discovered, as he claimed, that he had not been given the proper change in making some payments to appellant. He demanded of appellant an additional two dollars, and it was while the two were engaged in a controversy over that sum that appellant 'shot and killed the decéased. There is conflicting proof as to the conduct of-deceased preceding and at the time of the shooting. Some of the evidence shows that he had a knife in his hand, waiving it in a threatening manner. On the other hand most of the witnesses for the Commonwealth said they saw no knife and that deceased made no-attempt to harm or injure the accused. The testimony for appellant is that the deceased was advancing on the accused with a knife, and that the shot was fired in self-defense.

It will be seen from the foregoing summary that the Commonwealth’s evidence is sufficient to sustain the verdict, whereas the defendant’s evidence made out a case of justifiable homicide. This court has- frequently said that it is the province of the jury to accept the testimony of one set of witnesses and to reject that of another, .and the verdict will not be disturbed unless the rejected testimony so overwhelmingly preponderates as to indicate that the jury’s verdict was the result of passion and prejudice. Wells and Isaacs v. Commonwealth, 195 Ky. 740; Franklin v. Commonwealth, 195 Ky. 816; Allison v. Commonwealth, 196 Ky. 140. Applying this rule tó the case at bar, it cannot be decided that the verdict is flagrantly against the evidence, since according to the testimony introduced by the Commonwealth there was no justification for the shooting.

The final contention is‘that the Commonwealth attorney in his closing argument to the jury was, guilty of misconduct that was grossly prejudicial to appellant. The misconduct complained of consists, as claimed; of statements riot sustained by the record nor warranted in, law. But we are precluded from considering this ground of complaint because it is not authenticated in the record. It merely appears, in the motion and grounds for a new trial, and there is nothing in.the bill of exceptions to indicate that the statements were .made by the Commonwealth attorney or that any objection was made to them by counsel for the defendant. It is an established rule of this court that improper conduct of counsel in the closing argument to the jury cannot be considered on appeal unless it is authenticated by the lower court in a bill of exceptions. Bannon v. Louisville Trust Co., Admr., etc., 150 Ky. 401; Southern Railway Co. in Kentucky v. Thacker’s Admrx., 156 Ky. 483; Illinois Central R. R. Co. v. Evans, 170 Ky. 536; and Mayer v. Louisville Railway Co., 192 Ky. 371. It follows that this ground must also 'be overruled.

Perceiving no errors’ in the record prejudicial to appellant’s rights, the judgment is affirmed.