140 Ky. 94 | Ky. Ct. App. | 1910
Opinion op the Court by
Reversing.
Horace Redden, who was then nineteen years old, went with Dillard Luther, who is about the same age, in a buggy to a blacksmith’s shop to get Luther’s horse shod. On the way they met Herman Humphreys, who proposed to go with them, and got in the buggy and rode with them to the blacksmith’s shop. While they were there they got some whiskey and all drank it, Humphreys getting pretty drunk and boisterous. After he got in this condition he commenced threatening that he would whip Lee Hicks, for whom he had been working. As they went along lie forced the boys to stop the buggy now and then to see him dance on the side of the road. When they got to Hicks’ house he made them stop again and went in to whip Hicks; hut 'Hicks was not at home. He learned there that Hicks was down the road beyond his house, hut between his house and Luther’s house. When they reached Humphrey’s house he told them he wanted to get a pistol to kill Hicks. They made some excuses to get rid of him, saying that they must go home and feed the horse. Finally he said he would get the corn and they could take the com with them and feed the horse. But while he was gone they drove off and left him. When he found that they had driven off and left him he became very angry with them, and went to Luther’s house where Luther’s father had a number of guests. He there made threats against the two boys, which induced Luther’s mother to telephone over to the place where Luther was to tell her son to keep out of his way. Not finding the hoys there he went to the house of Mr. T. Hicks, a near neighbor, and tried to borrow a pistol, which Hicks refused to lend him. He then threatened to shoot the smoke-stack off of Hicks’ house, and went to the house of John Wilson, where he
Humphreys was thirty years old, and was in his shirt sleeves, and while it is apparent now that he had no pistol, this was not so apparent at the time the difficulty began; and even upon the evidence for the Commonwealth it is manifest that he had determined to give Bedden a beating with the horse whip, which he held in his hands if he did not do him other injury; and although Bedden fired three or four shots after Humphreys had ceased to advance on him and was either cireiing around him or going from him, all the shots were fired in very rapid succession, the whole difficulty not lasting over ten seconds. Mrs. Wilson was the main witness for the defendant on the trial. After she had testified she was asked on cross-examination if she had not given certain testimony before the coroner’s jury as to the facts of the homicide different from her testimony on the trial, and she said that she had not. In rebuttal the- Commonwealth was allowed to introduce a number of witnesses who testified that Mrs. Wilson did testify before the coroner’s jury as indicated by the questions. The evidence was competent to' contradict Mrs. Wilson, but it was not competent as substantive evidence as to how the difficulty really took place; and the court should have so admonished the jury. No sucia admonition was given, and from the number of these witnesses and the importance that was apparently attached on the trial to this phase of her version of the difficulty, the failure to admonish the jury that the testimony as to what she said before the coroner’s jury as to how the difficulty occurred was not to be considered as substantive evidence could but have been very prejudicial to the defendant. Dr. Sanford Sisson was also introduced on the trial, and was asked if he had not made a certain statement on the night of the homicide as to the back of Humphreys being powder burnt, the purpose being to show that Humphreys was shot in the back and at close range. In rebuttal the Commonwealth was
Judgment reversed and cause remanded for a new trial.
