136 Ky. 789 | Ky. Ct. App. | 1910
Opinion op the Court by
— Affirming.
The appellant, W. D. Oldham, was indicted in the Madison circuit court for the malicious cutting and wounding'of Boyd Wagers with intent to kill him. The trial resulted in a verdict finding him guilty of cutting and wounding in sudden heat and passion and fixed his punishment at a fine of $500. Judgment was duly entered upon the verdict and a new trial refused appellant.
According to the evidence, the cutting and wounding of Wagers was done under the following circumstances: Appellant, Wagers and James, with two other persons, met at night in a secluded room in the city of Richmond for a game of poker. After playing awhile, two of the company went to their homes, leaving appellant, Wagers and James to continue the game. At one time during the progress of the game appellant had won of Wagers $127, but at that juncture luck turned against appellant, and by the end of the game he had lost to Wagers $200^ for which he gave Wagers his cheek on one of the banks of Richmond. When the check was received by Wagers, which was near daylight, he said he would go home, thereupon appellant objected to his quitting the game until certain unused chips upon the table gave out,but Wagers persisted in his intention of quitting play, and appellant then told him if he did so the check he had given him would not be paid by the bank upon presentation, to which Wagers replied: “I .am going to take this check tomorrow morning and present it, and, if they don’t pay it, I will meet you on the street and we will have some trouble.” Appellant in response to that statement said: “All right, I will be fixed for you, come on.” This declaration provoked Wagers to say: “Give me my money back, and you can have it,” meaning the check. Appellant re
Immediately following this demonstration, he and appelant engaged in a fight, during which they struggled about, the room for some moments, but were finally separated by James. After they were separated, according to the testimony of Wagers, appellant, who stood on the other side of the room from him, feeling in his pocket drew a knife, and said: “I have found what I have been looking for.” Wagers further testified that, after drawing the knife, appellant advanced upon him and renewed the fight, which continued for a while and until they were again separated by James; that the combatants then agreed to - fight no more, and Wagers shut the blade of his knife, believing appellant had done likewise, but that, instead of doing so, appellant unexpectedly to him (Wagers) cut and wounded him in or near the neck by reaching over the shoulder of James. The wound was a serious one, causing Wagers to faint in the presence of appellant and James, and giving him much suffering for several weeks. Appellant’s testimony was contradictory and much of that of Wagers, and was to the effect that the latter was the aggressor in bringing on the fight and in renewing it, that appellant was all the time on the defensive, and that the cutting and wounding of Wagers was done by him in his necessary self-defence and upon the belief, for which he had reasonable grounds, that he was about to be killed or receive great bodily harm at the hands of Wagers, and that he had as it reasonably appeared to him, no other safe or apparently safe means of avoiding the danger. James, in the main, corroborated appellant’s version of the difficulty.
The error committed by the court in rejecting this evidence was purely technical and in effect inconsequential. If there was on the part of Wagers any bias arising from self interest, or hostility toward appellant it was doubtless sufficiently manifested by his testimony and demeanor as a witness to be readily discovered by the jury. We are therefore unable to see that the exclusion of the testimony in question could have been seriously hurtful to appellant. Section 340, Criminal Code of Practice, forbids the reversal of a judgment of conviction for minor errors appearing in the record. As said by this court in Gordon v. Commonwealth (decided January 25, 1910) 124 S. W. 806: “The tendency of courts generally and of this court in particular in its more recent decisions has been to break away from technical rulings and to examine the record with a view of ascertaining whether or not the accused has been given
The remarks of the commonwealth’s attorney in argument to the jury to which appellant takes exception, were in substance that, when appellant said he would not pay the check if Wagers did not play longer, he (the commonwealth’s attorney) feared that Wagers knew from his long acquaintance with appellant that he was not honest or courageous. It will be found upon examination of the record that this statement of the commonwealth’s attorney wás made in reply to what had been urged by appellant’s counsel in respect to his high standing and' character. While the remark had better- been left unsaid, we do
Finding in the record no cause for holding that apjoellant did not have an impartial trial, the judgment is affirmed.