97 S.W.2d 584 | Ky. Ct. App. | 1936
Reversing.
Richard Sanders appeals from a judgment convicting him of voluntary manslaughter, and fixing his punishment at five years' imprisonment. *672
The chief ground urged for a reversal is that the court erred in failing to instruct on involuntary manslaughter.
The evidence for the commonwealth discloses that appellant and the deceased, Ernest Ray, both colored boys, had been drinking and quarreling, and a short time before appellant had struck Ray. At the time of the homicide Ray was standing on the concrete pavement facing appellant. Lloyd McCreary testified that he discovered a pair of knucks under appellant's gloves. O.J. Johnson saw appellant strike the deceased a glancing blow on the head. The back and head of the deceased hit on the soft part of the ground at least a foot from the sidewalk. Dr. H.W. Bond examined the deceased after the difficulty and found a slight abrasion across the bridge of his nose and a deep wound on the back of his head extending down about 2 1/2 inches from the top. In his opinion the wound on the back of the head was the cause of the death of the deceased. There was blood on the sidewalk.
On the other hand, appellant testified that he did not strike the deceased with knucks, that he had no knucks on his hand, that he had on gloves, and could not get a pair of knucks under the gloves. He struck Ray in the face with his fist. They were good friends and he did not intend to kill him. Walter Jones, who was present, testified that appellant had on kid gloves when he hit the deceased.
It is true that in the case of Cheatham v. Commonwealth,
Judgment reversed and cause remanded for a new trial not inconsistent with this opinion.