197 Ky. 763 | Ky. Ct. App. | 1923
Opinion of the Court by
Affirming.
This action was commenced, in the Oldham circuit court by Effie Dixon and her two minor children against appellant Jackson to recover damages for the malicious killing of her ¡husband, Ed Dixon, the father of the minor
It is conceded that appellant Jackson shot with a pistol and killed Ed Dixon, the husband of Effie Dixon and the father of the other two' plaintiff© below; but it is •insisted by appellant Jackson that the shooting was in his necessary self-defense. Jackson was indicted, tried and convicted of the crime of manslaughter 'and is now serving a term of eight years in the state penitentiary.
Appellant Jackson insists that the judgment must be reversed because (1) there was not sufficient evidence to carry the case to the jury, and the court .should have sustained his motion for a directed verdict; and (2) the verdict is flagrantly against the evidence.
The facts in this case are not altogether satisfactory but there appears to be sufficient evidence on behalf of the widow and children to not only warrant the submission of the case to the jury but to sustain the verdict. The deceased, Dixon, was a tenant and lived on the farm of another some distance from the home of appellant Jackson, although he had for a short time been the tenant of appellant Jackson and they had. disagreed about some matters and Dixon had left the premises and employment-of appellant J aekson. Prom the evidence we gather that appellant J aekson was accusing Dixon of stealing a small quantity of corn when he left appellant’© premises. Jackson with a concealed pistol went to the premises on which Dixon had been living after leaving appellant’s place, and inquired for Dixon, and 'being told he had moved the night before to another named farm, appellant went to that place pretending that hie had other business there. He saw and spoke to the deceased who' was near the barn harnessing a mule. To .this fact there was> one witness. After speaking to Dixon appellant Jackson started as if to go around the house to see the witness1 Marshall for whom ike had inquired at that place, and Mrs. Marshall, who had heard him speak to Jackson, went into the ■house. Immediately upon reaching her room where Mrs. Dixon and her children were sitting, she and Mrs. Dixon
The jury found for the plaintiff, now appellee, Mrs. Effie Dixon, and her two minor children, the sum of $3,-300.00, of which amount the court adjudged one-half to the widow and one-half to the infant children. Jackson appeals.
No doubt the jury, considering all the evidence stated above, deduced therefrom the malicious intent of Jackson to shoot and kill Dixon, largely.if not entirely, from the fact that he was looking for Dixon at his old home place a short time before the killing and not 'finding him there, came armed immediately to his new home where the difficulty resulted in the shooting and death. The whole evidence considered, we think the malicious intent to precipitate a difficulty and to shoot and kill Dixon may have been deduced by the jury from the fact that appellant was armed and seeking the deceased with whom he had a quarrel.
Manifestly, if the substance of the evidence above recited be considered, the court would have erred if it ¡had sustained the motion of appellant for a directed verdict in his favor. While there was much evidence to the contrary there was sufficient evidence on behalf of the plaintiff to carry the case to thle jury, and the case having been submitted to the jury under instructions of which no complaint is made, and the jury having found in favor of the plaintiffs below, this court is without power to reverse the judgment, there being more than a scintilla of proof to support it. The verdict is not flagrantly against the evidence.
For the reasons indicated the judgment is affirmed.
Judgment affirmed.
