Slone v. Commonwealth

31 S.W.2d 387 | Ky. Ct. App. | 1930

Reversing.

In the month of November, 1928, Jasper Slone killed Elbert Prater. On a trial under an indictment for murder he was convicted of manslaughter and his punishment fixed at twenty-one years' confinement in the penitentiary. On appeal the judgment was reversed on the ground that the verdict of the jury was flagrantly against the evidence. Slone v. Commonwealth, 230 Ky. 199, 18 S.W.2d 1005. On a second trial Slone was again convicted and given an eight-year sentence in the penitentiary. He appeals.

The commonwealth concedes, and our examination of the record confirms its position, that there is no substantial difference between the evidence on the second trial and that heard on the first trial. That being true, the opinion on the first trial is the law of the case, Johnson v. Commonwealth, 225 Ky. 413, 9 S.W.2d 53, and the court below should have granted a new trial on the ground that the verdict was flagrantly against the evidence.

In the circumstances it is unnecessary to review the other errors relied on for reversal.

Judgment reversed and cause remanded for a new trial consistent with this opinion.