204 S.W.2d 570 | Ky. Ct. App. | 1947
Affirming.
The grand jury of Garrard County returned an indictment against John Thomas Stodghill charging him with the crime of murder. The indictment also charged him under the habitual criminal act, KRS
Appellant shot and killed Harold Curtis on September 15, 1946. Appellant worked in a restaurant in Lancaster, Kentucky. Curtis entered the restaurant and ordered a sandwich. Appellant was behind the counter. According to the weight of the evidence, Curtis was boisterous, apparently under the influence of liquor, and used profane and vulgar language in the presence of a number of patrons of the restaurant. Robert Wearren, proprietor of the restaurant, ordered Curtis to leave. Curtis started toward the door, but turned and said he was not going out. He then addressed his remarks to appellant, and, in substance, threatened to whip him if he came outside the restaurant. Thereupon appellant seized a rifle hanging on the wall and shot Curtis. According to a number of eyewitnesses, Curtis was standing twelve or fifteen feet from appellant and was making no demonstration. He was in his shirt sleeves and was unarmed.
It is appellant's contention that the two former convictions were not established by competent evidence, and Blair v. Commonwealth,
During the trial, the presiding judge called the attorneys *453
for the Commonwealth and the accused to the bench and asked if they would agree to a separation of the jury during the noon recess. The attorneys agreed. It is now contended that this action by the trial judge was prejudicially erroneous, and Anderson v. Commonwealth,
Appellant finally contends that the indictment is duplicitous in that it charges murder and also a violation of the habitual criminal statute, and the demurrer thereto should have been sustained. The question was decided adversely to appellant's contention in the recent cases of Elliott v. Commonwealth,
Judgment is affirmed. *454