133 Ky. 398 | Ky. Ct. App. | 1909
Opinion of the Court by
Affirming.
The appellant, Van Gipson, insists that he was illegally convicted in the court below of voluntary manslaughter, under an indictment charging him with the murder of Elmer James, and his punishment fixed jat confinement in the penitentiary twenty-one years, and by this appeal seeks a reversal of the judgment entered upon the verdict, of'the jury.
James was shot in the back and instantly killed, and appellant admitted on the trial that he killed him, but claimed that in taking his life he acted in self-defense. The Commonwealth’s theory is that appellant shot and killed deceased from ambush, or when he was fleeing from him. The latter view was favored by its counsel because of the character of the wound Inflicted; two physicians having testified that they were unable to probe the wound from the point of the bullet’s entrance, from which they deduced the conclusion that, when shot, the body of deceased was inclined forward as if he were'running, which stretched the muscles and ligaments of the back, but that, upon receiving the wound and falling, they relaxed land resumed their normal position, thereby closing the wound, and so obstructing the passage made by the bullet that the probing was made impossible. On the other hand, if, when shot, deceased was, as claimed
The deceased married a sister of appellant, and he and his wife made their home with the mother of appellant on another part of the same farm upon which appellant resided. According to the evidence, deceased and his mother-in-law were not on good terms, and for this or some other reason there had been a bad state of. feeling existing for some time between deceased and appellant. The killing of James occurred about 7 o’clock on the morning of July 17, 1908, on ia. branch near appellant’s residence. Two or three witnesses introduced by the Commonwealth testified that they heard the pistol shot when the killing occurred, and that it was immediately followed by a cry of distress; but none of the Commonwealth’s witnesses saw the killing. One of them, Elmer Webb, a 16-year-old nephew of appellant and a member of his household, testified that he heard the shot, and shortly before it was fired saw appellant get from a trunk his pistol and start with it in his possession toward the tobacco patch, where the killing occurred, saying when he left the house that he would “put Elmer James out of the hollow damned rough.” The witness further testified that soon after the appellant’s departure he left the latter’s house to take some milk to his grandmother, Mrs. Dana Gipson; that upon reaching the top of a hill he heard a pistol shot down in the hollow about 150 yards from him, and, going further, met appellant with the pistol in his hand returning to the house, but neither of them spoke to the other. The witness said he then went on down in the hollow, and there found deceased lying in the path, face down
Appellant’s account of the homicide greatly differed from that of the witness, Webb. He testified that he and his nephew, Webb,-were at work in the tobacco patch, and his wife was also present when James was killed; that he had his pistol with him, because he had learned from his mother the day before that James had threatened to kill her, and also to kill appellant, and had invested the proceeds derived from the sale of ia calf in a pistol' for that purpose; that James came up the hollow, and appellant said to him, “Good morning,” to which James replied, “Go to hell, you damned son of a-,” and added that Eliza, appellant’s wife, had been telling lies on him. Appellant further testified that, following these statements of James, he told him of his abuse of and threats against appellant’s mother, and that he should not blackguard his wife, and must get his clothes and .get out of the hollow, or he (appellant) would put him. out;' that James thereupon cursed appellant, said he would kill him, and, picking up a rock, threw it at ■him, but appellant dodged it; that James then.threw
Various grounds were filed by appellant in support of his motion for 'a new trial, but we deem it necessary to consider only such of them as are urged by counsel for a reversal.
Their first contention is that the trial court erred in refusing to permit appellant to testify for himself that his mother, a day or two before the homicide, informed him of James’ abuse of and attempt to strike her, and his threats against her and appellant. There is no ground upon which to rest this contention, for the bill of evidence found in the record shows that both appellant and his mother testified in detail as to this matter, without objection or denial from court or counsel. We assume, therefore, that counsel for appellant inadvertently overlooked that part of the evidence.
It is also contended by appellant that the circuit court erred in permitting the Commonwealth’s attorney, over appellant’s objection, to say in argument to the jury, “I demand for the Commonwealth and all these people (meaning those in the courtroom assembled to hear the argument) a verdict of guilty against this defendant.” The statement in question was not prejudicial. The Commonwealth’s attorney had the right to ask for the commonwealth a verdict of guilty if he believed the evidence authorized appellant’s conviction, and to refer to the audience pres-ent, as was done; they being citizens of the Commonwealth, and in common with all other people, interested in having the law enforced by the punishment of the guilty.
It is further contended that a new trial should have been granted because the jury were guilty of improper conduct, in that one of their number, after the submission of the case, took it upon himself to reduce to writing the testimony of each witness, which writing, it is claimed, was used by the jury in arriving at a verdict. It appears that the writing referred to was done in the presence of all the members of the
No objection is made to the instructions, and our examination of them convinces us that none .could be urged, as they fully and fairly advised the jury of the law with respect to every aspect of the case in language that the jury could not fail to understand.
The record manifesting no error that could have been prejudicial to the appellant, the judgment is affirmed.