204 Ky. 183 | Ky. Ct. App. | 1924
Opinion op the Court by
—Affirming.
Appellant, Matt McCollum, indicted for murder and found guilty of manslaughter by the jury that tried him, prosecutes this appeal from the judgment of the Madison circuit court imposing a sentence of 21 years in the penitentiary as his punishment, that being the penalty fixed by the verdict of the jury. The facts of the case briefly are these: Appellant and his wife had been separated about two weeks, and about ten days previous to the homicide she had sued him for divorce and attached all his property. ' After the separation she went to the home
It is vigorously insisted for appellant that the judgment should be reversed because of incompetent evidence permitted to go to the jury. It was the theory of the Commonwealth that appellant possessed of the belief that his wife’s father and brothers were responsible for her having left, him armed himself and went to their home on the occasion in question to avenge himself of the supposed wrong. Appellant testified that he did not know any reason for his wife leaving him, and that he had done nothing to justify it. Upon cross-examination he was asked by the attorney for the Commonwealth if he had not had a conversation only some two or three days before the homicide with one of her brothers with respect to their separation. He was asked if in that conversation^her brother did not state to him that as he understood it his sister had left appellant because he had shot around her feet several times with a pistol and had sat up all night in a drunken condition with a razor in his hands and so terrorized his wife that she was afraid to live with him any more. Appellant denied that her brother had made such a statement to him. He was then asked if in that conversation he didn’t admit that he had been drunk on blackberry wine one night and that he did shoot around his wife’s feet, and appellant denied that. The Commonwealth introduced Barnett Wilson and contradicted appellant as to the testimony above indicated. Objections and exceptions were offered and saved for appellant. The court admonished the jury to consider that testimony only for the purpose of affecting the credibility of the defendant, if it did affect his credibility, and for no other purpose. It is earnestly insisted by counsel for appellant that the introduction of this testimony was highly prejudicial to appellant in that it permitted to go to the jury evidence of the commission of other offenses by appellant other than the one for which he was being
We cannot hold with appellant’s contention on this question. This homicide grew out of the separation of appellant and his wife. That was the motive shown by the Commonwealth for appellant killing deceased. It also was offered by defendant as the motive that prompted his wife’s brother to attack him and thereby bring on the difficulty that resulted in the death of deceased. We are of the opinion that the court below properly permitted appellant to be interrogated and contradicted about the facts .of the conversation in question.
The misconduct of the attorney for the Commonwealth in closing the argument in this case urged by appellant as a reason for a reversal of this case cannot be considered by us because it does not appear in the bill of exceptions. The bill of exceptions does not show that any objection was made to any of the argument for the Commonwealth or that the court ruled upon such objection or that an exception was taken to the ruling of the court. We are permitted to consider only the errors occurring upon the trial of the case that appear in the bill of exceptions. Criminal Code, section 282; Frey v. Commonwealth, 169 Ky. 528; Combs v. Commonwealth, 160 Ky. 386; Hendrickson v. Commonwealth, 147 Ky. 299.
No other question was raised for appellant as his case was presented by the brief of-his counsel. We find no errors prejudicial to the substantial rights of appellant appearing in the record, hence the judgment of the court below, is affirmed.