91 S.W.2d 998 | Ky. Ct. App. | 1936
Reversing.
By a shot from a shotgun in the hands of Willie Thacker his wife was killed on January 8, 1935. For this be was charged by indictment with murder, was convicted of voluntary manslaughter, and his punishment fixed it twenty-one years' confinement in the penitentiary.
On November 9, 1934, Willie Thacker, aged twenty-two, in Harlan county married Beatrice Reynolds, age seventeen of that county. She had been reared in a Baptist Orphans' Home near Louisville, was a daughter of Henry Reynolds of Harlan county, and for some unexplained reason is frequently referred to in this record as "Dorothy Thacker."
These young people appear to have been poor, honest and respectable. They made their home at a place called Indian Head, where the husband had employment in a coal mine and they were apparently happy. Having lost his position there, they went in *99 the late afternoon of January 8th to the home of Elizabeth Grubbs, a first cousin of Willie Thacker, and with whom they expected to spend a few days. This was a distance of about one and a half miles. They walked and Thacker carried a sack of coal to Mrs. Grubbs. It was dark when they arrived.
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The beds and the pallet were grouped around the stove and Thacker was seated practically at his wife's feet as she lay on the pallet. Mrs. Thacker screamed that her arm was shot, Thacker pulled back the cover, saw the wound, fell on his knees, began praying, and called to Lawrence Combs to get an ambulance. Combs left and did not return. If he called an ambulance, none came. As the ambulance did not come at once, Thacker soon left and ran frantically from place to place to get to a telephone that he might call an ambulance. He returned with one, went in it to the hospital with his wife, and remained with her and assisted in her care until he was arrested the next morning. At the time of the shooting, Mrs. Grubbs had her back turned, she was rearranging the bed and hence did not see the shooting. Combs was looking out the window, so he says, and did not see it.
Later Thacker came with a shotgun, looking for her; that when he discovered her in bed he, so they say, seized her by the hair and said, "Come out of there you _____ whore, and go with me, your time is short, I am going to kill you when I get you to the hoglot," etc. George Henson testifies he lived beneath Murphy and heard some one up there about 9 o'clock cursing and going on and heard him say, "It's my wife, I will do as I please, I'll kill her before daylight." He says that as they left he heard a shot fired. Mary Henson testified to hearing some one there, but did not testify to anything be said or did, or to the shooting. Wade Murphy testifies to practically the same things as Marie Fugate had, but adds that when they left Thacker shot into the floor.
The next house they passed was that of Charley Miles. He, his wife, and Stella Barnett testify that as Thacker and his wife came up the road he was flailing her with the shotgun, kicking her, and using vile and abusive language towards her. Charley Miles says he opened the door and standing in the doorway with his hand on the door facing, told Thacker to stop using such language, whereupon Thacker shot at him, so Miles says, and although he was in the doorway and the shot struck both sides of the door, no shot hit him, and that still beating his wife with the shotgun they went on up the road. The failure of those who saw her body later to find bruises thereon seriously affects this evidence.
A witness may be impeached in this state by showing the general reputation of the witness for morality, chastity etc. 70 C. J. 842, sec. 1049, Logan et al. v. Com.
We have stated what Mr. Thacker said about it. He does not say he intentionally shot his wife and thus his case is unlike that of Simmons v. Com.,
The appellant was convicted of voluntary manslaughter, which means this jury believed one or the other of the following states of fact:
(a) That Thacker willfully, feloniously, and intentionally shot his wife under provocation ordinarily calculated to excite passion beyond control or, *104
(b) That Thacker had no desire, thought, or intention of harming his wife, but when he knew or by ordinary reason should have known that it was dangerous to human life to handle this gun as he was doing, he without regard for consequences or for the safety of others continued, and as a result of his wanton, reckless, and grossly careless handling of the gun it was discharged and his wife was thereby killed.
There was no evidence on which this jury could have convicted Thacker under proposition (a) for not a witness testifies, nor are there sufficient circumstances to show, he intentionally shot his wife. Reason would indicate he did not do so for as he sat on this bed the muzzle of this gun was within thirty inches of her heart and if he had intended to kill her he would have shot her not in the arm but in some vital organ.
Before the jury could convict him under proposition (b), it was necessary for the jury to believe Thacker knew this gun was loaded for a really unloaded gun is not dangerous.
Thacker testified he did not then know this gun was loaded, but that it was loaded is a demonstrated fact, and if the jury believed from the evidence he fired this gun at Murphy's home and at Miles' home and as he had had it in his possession since, the jury may have inferred he had reloaded it, and if he did, he knew it was dangerous.
This case is so much like the cases of Peay v. Com.,
This is not available for reversal as Thacker did not file his own affidavit that he first discovered this after the trial. See Oakley v. Com.,
There was no evidence to warrant the use of that language. Joe Reed did not so testify and no evidence of jealousy appears anywhere. When the accused objected to these remarks that sharply called them to the jury's attention, and when the court overruled appellant's objection, that action tended to fix those remarks in the minds of the jury, as having actually been testified to, and the result was calculated to seriously affect the substantial rights of the accused, and for this reason he is now awarded a new trial and the judgment is reversed.
