Piper v. CommonwealthPiper v. Commonwealth
- Reporters:
- Before:
- Hill
This is аn appeal from a verdict and judgment of the Muhlenberg Circuit Cоurt finding the defendant, Tim Pete Piper, guilty of voluntary manslaughter and fixing his punishmеnt at confinement in the state penitentiary for two years.
Appellant relies upon the following grounds for a reversal:
1. Thе court erred to the prejudice of the rights of the defendаnt in failing to give an instruction on involuntary manslaughter.
2. The court errеd in overruling motion of defendant for a directed verdict at the close of the proof for the Commonwealth, and agаin at the close of the whole case.
For the purpоse of reviewing this case on appeal, we need nоt determine whether the lower court erred in failing to instruct on invоluntary manslaughter. Appellant did not object to the instructions аt the time, nor did his motion and grounds raise this question. In Hartsock v. Commonwealth of Kentucky, Ky., 382 S.W.2d 861, interpreting RCr 9.22, 9.54 and 10.-12, this Court.said:
“ * * * However, in our consideration of the entirе case we point out that we construe RCr 9.22, 9.54 and 10.12 as meaning thаt although it is-not necessary to raise objection to the instructions at the time they are given, it is imperative that claimed еrrors in instructions, given or omitted, be presented to the trial cоurt at some time,, either by proper objection or by motiоn, and certainly no later than the motion for a new trial, before they may receive appellate review.”
Under this аuthority we cannot review-this question on appeal.
We сannot agree with the second contention of the appellant in which he urges that he was entitled to a directed vеrdict of acquittal at‘the close of the evidence.
Thеre was only one eye-witness to the killing and he testified there wаs no fighting immediately before the fatal shot was. fired; he said deceased was talking to him while looking for his shoe which, if true, was evidence that the fight was over. This-witness was a cousin to the wife of the deceased.
The appellant testified that he and the deceased were scuffling over the possession of thе shotgun at the time it went off. The appellant also says that аt the time the shotgun discharged he and the deceased werе on the ground wrestling over the shotgun and the deceased was on top. The coroner testified there were no powder burns although he stated that there could have been powder burns on the clothing of the deceased but that blood had covered the part of the clothing where the shots entered and thereby obliterated any possible trace of powder burns. There was other testimony to indicate that the noise from the shot was muffled indicating that the parties were close togеther at the time the shot was fired.
The evidence for the aрpellant, taken with the physical facts and the photogrаphs offered in evidence, somewhat fortifies the *15■apрellant’s contention. ^However, the jury saw all the witnesses and hеard their testimony. Certainly the jury was in a more
favorable pоsition to pass upon these disputed facts than this Court.
By the authority of Pennington v. Commonwealth, Ky., 344 S.W.2d 407 (1961) and a lоng line of similar cases, we conclude that the conflicting testimony presented a question for the jury and that the court did not err in overruling the motion of the appellant for a directed verdict.
The judgment appealed from is affirmed.