Affirming.
The Attorney General has entered a motion to strike the bill of exceptions from the record in this case and to dismiss the appeal on the ground that the record was not filed in time. He suggests that the transcript must be filed in the office of the clerk of the Court of Appeals within 60 days after the judgment was entered in the circuit court. This question was disposed of in the case of Commonwealth v. Crouch,
Appellant shot and killed Ben Bentley, and he was charged by the grand jury with the crime of murder. A jury found him guilty of manslaughter and fixed his punishment at two years in the penitentiary. Two errors only are pointed out by counsel for appellant. One is that the court should have directed the jury to find appellant not guilty on the ground that the evidence was not sufficient to sustain a conviction. Bentley and appellant had been friends from their boyhood, but a few months before Bentley was killed he had caused the death of appellant's father in an automobile accident which engendered bad feelings. Appellant had made some threats to the effect that he would take revenge on Bentley, but he testified that after becoming more familiar with the facts connected with the accident he had become reconciled, and that he hold no ill will towards Bentley because of the accident in which his father was killed. Bentley went to the home of appellant on the day of the killing armed with a pistol and inquired whether appellant had anything against him. Upon being assured by appellant *Page 27 that he had nothing against him, he asked if he might remain there for dinner with appellant and his family. Dinner was prepared for him, and during its preparation Bentley was disorderly and flourished his pistol. After dinner was over Bentley left the home of appellant and went away for a few hours, but thereafter returned and found appellant near his home engaged in a conversation with two or three other people. Bentley asked one of the men standing by whether he had any whisky, and, receiving a negative answer, he displayed his pistol and stated that he had whisky and also that he had that which was necessary to make up the difference. Appellant requested him to give up his pistol, saying to him at the time that he might kill some one, but Bentley refused to surrender his pistol, and he and appellant had a scuffle over the pistol, during which time the pistol was fired twice and appellant was wounded in the back and his clothing was set on fire by the discharge from the pistol. They were separated when Bentley struck appellant viciously over the head with the pistol. He left appellant and retreated for a short distance down the road with the appellant following him, when he again fired, and proceeded further down the road. Appellant fired at him before he started down the road the second time, and as he proceeded down the road appellant, followed him, and when he caught up with him he killed him. There was some testimony that Bentley dropped his pistol as he went down the road and appellant procured it as he passed by where it had fallen. There is testimony that appellant said he killed Bentley with Bentley's pistol. He remarked to some one after he had returned from where he had shot appellant that he had killed him "deader than hell." This statement was denied by appellant and some of the witnesses which he introduced. That appellant was badly mistreated by Bentley is thoroughly established by the evidence, but there was enough evidence to take the case to the jury on the question as to whether appellant killed Bentley in his necessary, or apparently necessary, self-defense. The verdict of the jury is not so flagrantly against the weight of the evidence as to justify this court in reversing the case on that ground.
The second ground relied on for reversal is that the transcript does not contain an order showing that the jury was impaneled or sworn, or that appellant was arraigned *Page 28
or pleaded to the indictment. This ground was not relied on in the motion and grounds for a new trial. For that reason we cannot consider this ground. Thompson v. Com.,
It is also suggested by counsel for appellant that the indictment on which he was convicted is not sufficient. His complaint on this point is that the indictment does not charge that the pistol with which appellant shot Bentley was "loaded with powder and leaden ball," or words of similar import. The indictment charges that appellant committed the offense of murder "by shooting Ben Bentley and beating him with a pistol, and the said Bentley did thereby die." Appellant was not misled by the language used in the indictment. He knew exactly the offense with which he was charged. By the provisions of section 122 of the Criminal Code the indictment is required to contain a statement of the acts constituting the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is intended. The indictment was sufficient.
Judgment is affirmed. *Page 29