149 S.W.2d 772 | Ky. Ct. App. | 1941
Reversing.
The appellant, Lee Rose, defendant below, was convicted of the murder of Homer Carpenter, and his punishment was fixed at life imprisonment. He seeks to reverse the judgment because: (1) There was a variance *55 between the indictment and the proof; (2) he should have been granted a continuance; (3) a peremptory instruction should have been given in his favor; (4) the evidence did not justify an instruction on murder; (5) the Commonwealth was allowed to contradict statements contained in defendant's affidavit which it agreed might be read to the jury as the testimony of an absent witness; (6) the Commonwealth was permitted to attack defendant's general reputation for peace and quietude when he had not put it in issue.
The indictment charged defendant with the murder of "Hobart Carpenter," while all the evidence introduced by the Commonwealth showed he killed Homer Carpenter. The defendant does not contend that he was misled by the given name of the deceased appearing in the indictment as "Hobart." All the Commonwealth's evidence was directed to the killing of Homer Carpenter. Defendant admitted he killed Homer and attempted to justify his act as having been done in self-defense. The typewritten copy of the indictment in the record has the word "illegible" written in parenthesis immediately preceding "Hobart Carpenter" the first time deceased's name appears in the indictment. We gather from this that the indictment was not typewritten but was in the handwriting of the draftsman, and as no mention was made of the alleged variance between the indictment and the proof in the motion for a new trial, the misspelling of deceased's given name, if in fact it were misspelled, was not discovered until the record was copied by the clerk. No question was raised on the trial as to the identity of deceased and it is not contended that the mistake in his first name was prejudicial to defendant or prevented him from having a fair trial. Therefore, we are not inclined to regard this as a variance between the indictment and the proof. Kriel v. Com., 5 Bush. 262,
There were six eyewitnesses to the shooting; three of whom testified for the Commonwealth, two for the defendant, and the sixth, John Partin, was absent. With the consent of the Commonwealth, defendant's affidavit as to what this witness would state was read to the jury as his deposition. A large discretion rests in the trial court in granting or refusing a continuance, which discretion *56
will not be interfered with by this court unless it is abused. As John Partin's testimony was largely cumulative, we do not think it was an abuse of discretion on the part of the trial judge to refuse to grant defendant a continuance. Kirk v. Com.,
The third and fourth grounds for reversal will be considered together as they are closely related. We do not deem it necessary to recite the testimony relative to the killing, but it will suffice to state it occurred in a saloon and that the testimony of the Commonwealth was to the effect that at the time the deceased was shot he had a bottle of beer in his hand and was coming from behind the bar. Just as he raised a gate in the counter and took one step, defendant told him to stop and then shot him. The testimony of the defendant and his witnesses was that the deceased had an empty beer bottle in his hand in a striking position, was advancing upon defendant who was retreating and asking deceased not to come on him at the time defendant fired. If the Commonwealth's witnesses are believed, there was no excuse for the shooting. If the defendant and his witnesses are believed, it was a case of self-defense. Thus an issue was made for the jury to determine whether the killing was without justification, or was done in self-defense. Where there is any evidence which tends to establish defendant's guilt of any degree of the offense charged, it is sufficient to take the case to the jury and sustain a conviction, unless the verdict is so flagrantly against the evidence as to shock the conscience, or leave little or no escape from the conclusion that it was the result of passion or prejudice on the part of the jury. Gambrel v. Com.,
The defendant argues that as the Commonwealth produced no evidence of ill will against deceased by defendant prior to the shooting, therefore no murder instruction should have been given and the court should have instructed only on voluntary manslaughter. In criminal law, the term "malice aforethought" means a predetermination to commit an act without legal excuse and it is immaterial at what time before the commission of the act such a determination was formed. Therefore, malice may be inferred from the circumstances attending *57
the act and it is for the jury to determine whether or not the act was done with malice aforethought. Harrison v. Com.,
After defendant had read to the jury his affidavit as to what the absent witness, John Partin, would testify, the court erroneously permitted the Commonwealth to introduce in rebuttal the sheriff and the coroner, each of, whom testified John Partin gave no such testimony before the coroner's jury. We had practically this same question before us in Jarrell v. Com.,
The defendant did not put his character for peace and quietude in issue and the trial court erred in permitting the Commonwealth to prove by several witnesses *58
in rebuttal that they knew defendant's general reputation in this respect from what his neighbors and acquaintances generally said about him, and that such reputation was bad. In Shell v. Com.,
The judgment is reversed for proceedings consistent with this opinion. *59