167 S.W.2d 56 | Ky. Ct. App. | 1942
Affirming.
Appellant, Tennis Hamilton, was convicted of the crime of manslaughter upon an indictment charging him with the murder of his stepfather, Sanford Williamson. He was sentenced to confinement in the state reformatory for a period of 15 years. He has assigned three grounds for reversal of the judgment, viz: (1) that the court erred in not sustaining his motion for a new trial *309 upon the ground of newly discovered evidence; (2) the verdict is flagrantly against the law and the evidence; and, (3) the court erred in failing to admit competent evidence.
We are precluded from considering the first alleged error because appellant's affidavit in support of his motion for a new trial on the ground of newly discovered evidence was fatally defective, in that, it failed to allege facts showing that he or his attorneys had exercised due diligence before the trial to discover the evidence. The affidavit merely states that "the defendant has discovered important evidence in his favor, that after the exercise of due diligence he did not and could not discover before the said trial." In the case of Belcher v. Commonwealth,
" 'In a case of this kind (newly discovered evidence), it is not sufficient merely to allege that affiant exercised due diligence, but he must allege facts showing that such diligence was exercised. As the affidavit fails to show such facts, we conclude that the court below did not err in refusing a new trial on the ground of newly discovered evidence, which, so far as the record shows, might have been discovered by the slightest inquiry on the part of plaintiff.' "
The rule thus stated is well established and the reasons therefor are elaborately set forth in the opinion of the court in Belcher v. Commonwealth, supra.
We will therefore proceed to a consideration of the contention that the verdict is against both the law and the evidence. It is argued that since the testimony of the only eyewitnesses to the happening of the homicide clearly established that appellant committed the act in defense of the life of his mother, he was entitled to a verdict of acquittal to be directed by the court. Similar contentions, where the testimony was uncontradicted by other testimony or evidence of physical facts, have been upheld in this jurisdiction. Dixon v. Commonwealth,
The final complaint that the court erred in failing to admit competent evidence we deem to be likewise without merit. The evidence related to an altercation and assault made by deceased on a stranger the night before the shooting occurred. Had the assault been made shortly before the occurrence of the homicide it might have been competent to show the frame of mind the deceased was in at the time he was killed, in substantiation of appellant's theory that deceased was the instigator of the altercation in which he lost his life. But such events which occurred the day before are too remote to have any bearing on that issue. Even if the testimony had been competent we do not apprehend that its rejection could possibly be prejudicial to appellant's rights. It was shown that the assault made on the stranger the night before was in imaginary defense of appellant's mother. We do not conceive that proof of one's willingness to fight in defense of his wife can possibly prove that on another occasion he had attempted to put an end to her life. The rejected evidence was totally irrelevant under the circumstances proven in the case.
The judgment is affirmed.