202 Ky. 35 | Ky. Ct. App. | 1924
Opinion of the Court by
Affirming.
The appellant, Sillns Overton, was tried and convicted in the court below of the offense, duly charged by indictment, of “unlawfully, wilfully and maliciously” shooting at Sarah Partin “with intent to kill her, but without wounding her.” His punishment was fixed by the verdict of the jury and judgment of the court entered thereon at confinement of two years in the penitentiary. He was refused a new trial and has appealed.
Sarah Partin is the wife of Lenard Partin and she and her husband reside near the appellant. The evidence furnished by the Commonwealth’s two witnesses, Partin and wife, was to the effect that the appellant went to their home about four o’clock in the afternoon of
According to the further testimony of the Partins the appellant, after apparently leaving the premises following the two pistol shots at Mrs. Partin, in a few minutes returned to their home and, without announcing his presence, opened the door with pistol in hand, and entered the room where they were sitting, saying “he generally conquered where he went,” and again began and continued while present his abuse of Mrs. Partin, which the husband, being unarmed, was powerless to prevent.
The appellant in testifying in his own behalf, admitted that he visited the home of the Partins at the time indicated by them, the quarrel he there had with Mrs. Partin and the drawing' of his pistol on her, but claimed that the altercation had its origin in her abuse of his aunt, Mrs. Amanda Henderson, which he resented; and that he did not draw his pistol upon or threaten to shoot Mrs. Partin until she drew upon him a butcher knife and backed him into a corner. That her husband then came
After the introduction for the appellant of one Riddo Bostich, whose testimony offered to impeach the general reputation of Sarah Partin proved to be incompetent and for that reason was excluded, Sarah Partin was recalled as a witness by the appellant to lay the foundation for contradicting her, for which purpose she was asked if she did not at a time indicated, state to Millard and Albert Overton, brothers of the appellant, she was going to bring the appellant, or the latter and his wife, “to dry bread,” in answer to which she denied making such statement. Thereupon she was asked by the Commonwealth’s attorney in rebuttal of the appellant’s testimony and to contradict him, whether she drew a butcher knife on the appellant in the quarrel between them at her home, as testified by him. And also whether, as he had testified, she had been hired by Jim Hamlin and Bill Henderson “to .make this case against him.” To each of which questions her answer was a denial; and in giving her answer to the first of them she added the statement that she had never owned a butcher knife.
Upon being introduced as witnesses by the appellant, his brothers Millard and Albert Overton, both testified that Sarah Partin did say to them after the difficulty with 'appellant at her home she was going to bring the latter to “dry bread.” Jim Hamlin and Bill Hen
Tt is manifest that much of the testimony of the Partins was, as we have seen from appellant’s testimony, admitted by him and other parts thereof not denied. That is he failed to deny their statements that he was intoxicated on the occasion in question, that his difficulty in the house with Mrs. Partin on the first visit was stopped by the interference of her husband armed with the axe and his command to him to leave the house, or that his return to and re-entry into the house was, unannounced by him before walking into the room. In view of the foregoing facts and accompanying circumstances disclosed by the evidence, the conclusion cannot be escaped that as a whole it conduced to establish the appellant’s guilt of the offense charged.
Only two of the grounds urged for a new trial in the court below are relied on by the appellant for the reversal by this court of the judgment! of conviction, viz.: (1) Surprise resulting to him on the trial of the case. (2) The discovery by him, since the trial, of new and material evidence . The surprise alleged is indefinitely set forth by the appellant’s affidavit on the motion for a new trial, but we infer from its statements that it was claimed to have been caused partly on account of his being subjected to trial at all, and partly by reason of certain unexpected testimony in behalf of the Commonwealth. The first of these alleged causes of surprise was based on the claim that inasmuch as by a previous arrangement between the appellant and others of his faction, and the Hendersons and others of a different faction, it was agreed, with the concurrence of the county judge, that numerous indictments pending against divers members of each faction should be dismissed and the feud between the two factions brought to an end, he supposed the indictment against him in this case would be dismissed.
The further surprise claimed to have been experienced by the appellant as arising out of the introduction by the Commonwealth of certain evidence alleged to be untrue and wholly unexpected to him, was also insufficient to entitle him to the new trial moved for in the court below. Without stopping to discuss the evidence contained in the affidavits and by which the appellant claimed he could on a new trial refute that of the Commonwealth referred to, it only needs to be said the authorities are uniform in holding that a claim of surprise cannot be first made on a motion for a new trial. It is the duty of the accused, when surprised by the evidence of the Commonwealth, to at once make it known to the court and by'proper motion and showing of necessary facts apply for a continuance, instead of electing, as did the appellant in this case, to await the result of the trial. Lewis v. Comlth., 190 Ky. 160; Sizemore v. Comlth., 189 Ky. 46; Dennison v. Comlth., 198 Ky. 376.
The alleged newly discovered evidence constituting the remaining ground urged by the appellant for the reversal of the judgment, did not, in our opinion, entitle
“In other words, to authorize a new trial the newly discovered evidence should be of such a weighty and convincing character as to have a decisive influence on the evidence to be overthrown by it.” Ellis v. Comlth., 146 Ky. 715; McElwain v. Comlth., 146 Ky. 104; Robinson v. Comlth., 146 Ky. 291; Dennison v. Comlth., 198 Ky. 376; Colson v. Comlth., 200 Ky. 402.
The alleged newly discovered evidence presented by the appellant in support of his motion for a new trial was not of the character required by the rule, supra.
As the record presents no sufficient reason for disturbing the verdict, the judgment is affirmed.