195 Ky. 87 | Ky. Ct. App. | 1922
Opinion op -the Court by
Affirming.
Lee Partin, a boy about -seventeen years of age, was shot and killed in the residence of Eobert Lambdin, a brother of appellant, Grant Lambdin, in Whitley county between eight and eight-thirty p. m. on December 22,1921. Appellant was indicted by the grand jury of the county charging him with the homicide and at his trial he was 'convicted of the -offense of voluntary manslaughter committed by the reckless and grossly careless handling of a pistol when -he had reasonable grounds to know that it “was dangerous to life in the way and manner he was using it,” and while so doing he shot and killed the de
The grounds urged by his counsel for a reversal are (1), that the verdict is flagrantly and palpably against the evidence and was the result of passion or prejudice, on behalf of the jury; (2), error nf the court in admitting evidence over defendant’s objections; (3), erroneous instructions, and (4), newly discovered evidence material to the defense, each of which will be disposed of as briefly as possible in the order named.
1. Defendant was twenty years of age and had been married but a short while and his wife was teaching the public school in the district in which they lived. They resided at the home of defendant’s father, and his brother, Bobert Lambdin, who was also married, lived in a one room cabin about four hundred yards away. Evan Lamb-din, another brother, and William Siler Lambdin, a first cousin, lived in the state of Oklahoma but they were each visiting in the neighborhood at the time and had been for something like six weeks. The non-resident brother had his suit case at the home of Bobert, whose wife was away on that night and no one expected to occupy the house except the husband, the parties having no children. It was on Thursday and defendant’s wife closed her school on that day for the approaching holidays, and as was customary in that vicinity she treated the pupils. The deceased, Lee Partin, who is a first ‘Cousin of defendant and also of the deceased, Garrett Partin, who is likewise a first cousin to defendant, went home with the school teacher after she dismissed her school., and they arrived at the home of the elder Lambdin where she and her husband resided at about four o ’clock p. m. Those of the family' who were present together with the two visitors had supper at the usual hour and shortly thereafter the defendant and his brother, Evan, arrived. Discovering the presence of the company the two brothers concluded that they would procure a chicken for breakfast the next morning and they left the house for that purpose, although there were chickens on the place but defendant said they were too poor to eat. They finally found a suitable one and returned later and-had their supper. While away hunting for the chicken they ran across Chester Hamblin, another cousin of defendant, and Wil
Hp to this point the witnesses for both the Commonwealth and the defendant agree, except, there is contradiction about who did and who did not take a drink in the house, to which we have before referred. Chester Hamblin and Garrett Partin, the only eye-witnesses introduced by the Commonwealth, testified that shortly after Evan Lambdin laid his pistol on the dresser the defendant-picked it up and fired two shots in the doqr above the head of deceased who, as stated, was sitting on the floor at the bottom of the door, and that in a second or SO' he fired another shot in the direction of the deceased which struck him somewhere in his leg and ranged up it and entered his bowels, from the results of which he died in a few hours. Those witnesses say that defendant was several feet away from the deceased at .the time of the shooting, but the map used on the trial is not brought here and we are unable to fix the distance. They also say that Chester Hamblin, as -soon as he discovered deceased was shot, said to defendant, “I would be damned ashamed of myself that I had shot this poor boy and perhaps killed him,” and that the deceased immediately arose and said, “Boys, I’m shot, put me on the bed.”
Besides defendant, the eye-witnesses who testified in his behalf were his brothers, Evan and Robert Lambdin, and hi's cousin, William Siler Lambdin, and they testified in substance that after Chester Hamblin took his drink and after he had put his pistol in his pocket he left the lard can upon which he was sitting and went to the table by the dresser upon which was sitting a pitcher of water and took what the witnesses say was a “chaser;” that, he- immediately picked up the 45 calibre pistol belonging to Evan Lambdin and fired two shots in the door above the head of deceased and again took his seat on the lard can and then fired the third shot which struck and
But there are some uncontradicted circumstances in the ease which strongly fortified the testimony of the Commonwealth’s witnesses, one of which is that defendant and his two brothers left the 'seejie with their cousin mortally wounded and lying upon the bed, and that upon merely a supposed apprehension of danger they fled into the mountains when, so far as appears from the record, no one pursued them, nor, according to their testimony, was their any fact or circumstance justifying such pursuit. They did not tell their father of the terrible tragedy in which, as they say, they performed no guilty part. Still another circumstance is, that if Chester Hamiblin did the shooting, as defendant and his witnesses describe, it is peculiarly strange that he did not do so with his own pistol which he had but recently put in his pocket, and if he had fired the fatal shot with the 45 calibre pistol with the muzzle within a few inches of the deceased, as defendant and his witnesses testified, there certainly would have been the signs of powder burn upon the clothing of deceased, but which, according to the uncontradicted testimony, was not true. Furthermore, there was testimony introduced by the Commonwealth, some of which was objected to and to be hereafter noticed, to the effect that the deceased and the wife of defendant were close friends. They had associated together before defendant was married and deceased was a pupil at the school taught by the wife. The testimony shows that the two were quite playful with each other and their friendly associations continued after the marriage. There is not enough to show any improper intimacy between them but there was enough to generate in the breast of some people a jealousy and there are sufficient facts to show that defendant, at least to some extent, entertained it. It was not altogether a natural act for defendant and his brother to leave the home of their father on the evening of the shooting before eating supper on the shadowy pretense of procuring a chicken for breakfast when there were plenty of them on the premises, nor did it appear necessary for defendant to invite the deceased to go with him and his brother after the latter’s suit case. At that time the trip for that purpose was expected to be a short one and there was no apparent necessity requiring four practically grown men to perform that service. We, there
2. The alleg’ed improper evidence complained of consisted in the testimony as to the associations of deceased with defendant’s wife both before and after the maiuiage, and a statement made by defendant to a witness that “He had the finest looking woman among any of his brothers and he was aiming to stop the boys from hanging around the school house there.” The latter statement, according to the witness, was made a.short while before the killing but the court subsequently withdrew it from the jury with an admonition that they should consider it for no purpose whatever. It is extremely doubtful if any of this testimony was irrelevant, because if defendant intentionally shot the deceased as described by the witnesses for the Commonwealth he was guilty of murder and any evidence tending to show motive was necessarily competent. If the associations of the deceased with defendant’s wife generated jealousy in his breast causing him to make the statement testified to by the witness, but whose testimony was withdrawn, a probable motive would be shown. But, be this as it may, that statement was withdrawn and objections were sustained to much of the testimony concerning the associations and conduct between deceased and defendant’s wife, and that to which objections were overruled, even if considered competent, could not possibly be prejudicial. Neither does the record disclose any misconduct of counsel in repeating’ questions as is so vigorously argued by defendant’s counsel.
3. The court instructed the jury on murder, voluntary manslaughter under sudden heat and passion, voluntary manslaughter by gross, reckless, and careless handling and discharging of firearms when defendant had reasonable grounds to believe that it was dangerous to life, as is defined in the case of Davis v. Commonwealth, 193 Ky. 597, involuntary -manslaughter, together with the usual reasonable doubt instruction as to the guilt or the degree of guilt, and the usual defining instructions. One of the criticisms under -this ground is that there should have been no instruction on voluntary manslaughter under sudden heat and passion, but manifestly, from the evidence as related, this criticism is without foundation, and equally so is the one that instruction 11a which submitted the crime of voluntary manslaughter by the reckless and careless handling of firearms when there was a probable danger to life in doing so, as is pointed out in
4. The newly discovered evidence relied on relates to some statements, purported to have been made by Chester Hamblin while he was in jail under a charge for the same offense, that he had shot deceased accidentally. Two or three of the inmates of the jail made affidavits to that effect and it was claimed that two other witnesses would state substantially the same thing but their affidavits were not procured and of course their supposed evidence can not for that reason be • considered. We gravely doubt, however, the relevancy of this testimony under the circumstances; but putting that question aside, and admitting its competency for the purposes of the case, the rule is that a new trial will not be granted for purely cumulative or impeaching newly discovered evidence, unless it is of such a preponderating nature as to be calculated to bring about a different result. This rule has been so often stated by this court that we deem it unnecessary to refer to the cases. Several witnesses introduced by the defendant testified to the same fact and whether the alleged newly discovered testimony was cumulative or not it was certainly impeaching and we are convinced that it was not of the character which, under the rule, would authorize the granting of a new trial. Moreover, before a new trial will be granted upon this ground it must clearly appear that the defendant exercised the requisite diligence to procure and introduce the testimony and that prerequisite does not sufficiently appear in this case. The slightest diligence would have caused inquiry to be made of the persons jn jail with the witness Hamblin, and the testimony of the other witnesses cannot be considered, as we have seen, because their affidavits were not filed.
For the reasons stated the last ground considered must also be denied, leaving the trial free from any error prejudicial to th'e substantial rights of the defendant, and the judgment, therefore, must be and it is affirmed.