74 S.W.2d 336 | Ky. Ct. App. | 1934
Affirming.
About 11:30 p. m., June 15, 1933, Robert Miracle, a nine year old boy, was shot, and he died therefrom in a few hours. Chester Maxey and his first cousin Walter Gaines were charged by indictment with his murder. Upon his separate trial Maxey was found guilty and his punishment fixed at imprisonment for life. He appeals.
E.W. Miracle and Clarence Miracle are truck operators with headquarters at Harlan, Ky. They were driving a Chevrolet truck on this occasion, loaded with *332 fruit and vegetables, en route south from Louisville, to Harlan, and on the Dixie Highway. E.W. Miracle was driving, Clarence was seated to his right, and the boy, who was killed, was lying across their laps, asleep, his head being in the lap of Clarence and his feet in the lap of E.W. Miracle. On what is called the "River Hill, 99, some five or six miles north of East Bernstadt, they say a sedan was parked somewhat across the highway, and as they neared it, two men came out into the highway and signaled them to stop. They did so. One of the men whom they now identify as Maxey came to the left side of the truck and asked for some gasoline; one of the Miracles replied that they were heavily loaded and had no more than they would need to complete the trip. Thereupon the man they now identify as Maxey thrust a pistol into the cab, and said, "Stick 'em up!" and presently he fired and the fire was returned by one of the Miracles. A general fusillade ensued until the Miracles got their truck started again and thus escaped, but not before this child had received his mortal wound. The Miracles drove to the hospital at London as rapidly as they could, arriving there at 12:20. They testify that Maxey and Gaines passed them at what is called "Joe's Place" in East Bernstadt, and that Maxey and Gaines had their car parked at the North End filling station in London as the Miracles passed that place.
Time was not a material element of this offense. The indictment charges the crime was committed before the finding of the indictment, so in view of section 129 of the Criminal Code of Practice, and cases cited in footnote thereto, we hold this action of the court was not erroneous.
He says he has been confined in jail and unable to learn the names of witnesses he desired, or to communicate with them, yet he introduced 41, and his cousin and codefendant, Walter Gaines, is a son of the man who was then jailer, and was his father's deputy, and we are sure he and his father were not without ability or knowledge of how to get all the witnesses available, and that Maxey had their active assistance.
He questions the necessity of the calling of this special term of the court, yet in view of the docket, section 971-12, Ky. Stats., as amended by Acts 1932, c. 61, sec. 4, made it the judge's duty to do so. He does not show the name of a single witness whose attendance he desired and did not obtain. There was no error in overruling the motion for continuance. See Brown v. Com.,
Defendant argues that was erroneous because, as he says, Robert Miracle was not assaulted and there was no evidence of an attempt to rob the truck. We do not so view the evidence. No instruction was given on manslaughter, and he complains of this; but there was no room here for such and a manslaughter instruction would have been erroneous. See Johnson v. Com.,
The judgment is affirmed.