Cottrell v. Commonwealth

Decision Date10 December 1937
Citation271 Ky. 52,111 S.W.2d 445
PartiesCOTTRELL v. COMMONWEALTH.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Spencer County.

John Will Cottrell was convicted of voluntary manslaughter, and he appeals.

Affirmed.

Gilbert & Davis, of Shelbyville, for appellant.

Hubert Meredith, Atty. Gen., and W. Owen Keller, Asst. Atty. Gen for the Commonwealth.

PERRY Justice.

The appellant, John Will Cottrell, has appealed from a judgment of the Spencer circuit court, sentencing him to confinement in the state penitentiary for 21 years as the result of his conviction of voluntary manslaughter at the March, 1937, term of that court.

The material facts in this case, as disclosed by the record appear to be very clearly established by the testimony given by the accused in his own behalf and are, for the most part uncontradicted.

These facts involved upon this appeal are, briefly summarized and for the most part as stated in counsel's brief for appellant, as follows:

The appellant, John William Cottrell, on November 23, 1936, received an anonymous note, advising him that his wife was too intimate with one Cox. The Cox referred to in the note was the decedent, Delbert Cox, who lived near the accused, Cottrell, in the Waterford community of Spencer county. The accused and the deceased were friends and cropper tenants upon neighboring farms, and they and their families had for years enjoyed a relationship of close and friendly intimacy.

The appellant testifies that he had for some while previous to the receipt of the anonymous note been somewhat disturbed by observing a seeming aloofness on the part of his wife and her lack of interest in him and their children, and that upon receipt of this note, advising him to "wake--see what is going on" as to his wife's running after Cox, he began to investigate the matter of their illicit relationship; that he made inquiry of numerous ones who had been intimate associates of his wife, who advised him, he testifies, that there was considerable talk throughout the neighborhood about his wife's intimacy with and running after Cox, that, in fact, the matter had become common gossip. He testifies that he went to the home of the deceased to talk with him about this general rumor concerning an improper intimacy between him and his wife and was told by Cox that, "it is just a pack of damn lies got started, nothing at all, I met your wife up on the road but not through any harm"; that he told him, "Delbert, the whole county is talking about it, you must straighten that up," but that he "just kept saying it was a passel of lies."

Cottrell testifies that he brooded over this matter for a whole week after receiving this letter and that it so harrassed him that his state of mind was such that he could not eat or sleep and that he became so depressed over the matter that finally, on Monday, November 30, when he came into the house and sat down at the dinner table, "I couldn't eat at all, I commenced crying and my wife come to me and told me, 'you think I have been lying to you about this, don't you?' I told her I did. She broke down and went to crying and told me that on Labor Day, early in September, the day she went to Louisville after the groceries for silo hands, she met Cox on the street in Louisville and said he come up to her and was drunk." Further, when asked to "tell all she said to you," he testified as follows: "Said she went to the room with him on that day. He just took her by the arm and led her on to the room and she told me that he had given her the medicine that caused the miscarriage, she taken that, and she said he had asked her several different times to leave and run off with him and leave me and go with him and she wouldn't do it."

When asked what effect that confession had on him, he replied, "Well, I went crazy, I reckon, I don't know what," and in reply to the question, "Are you subject to any kind of spells?" he answered, "Nervous spells and sleepy spells, get nervous and sleepy, just fall over to sleep at work or anything." He further testified that he had been having these spells for about 10 years; that he had had an infection of the brain or a tumor on it; and that Dr. Spurling of Louisville had operated on him for it.

He testified further, in regard to the effect of his wife's confession upon him when in that mental condition, as follows: "Well, I thought of everything that had happened, the whole story got on my mind, the way everything had been going on and I knew that I would have to do something to stop it. I couldn't stand it any longer"; also he stated that his landlord, Mr. Walker, had told him that he had talked to Cox a time or two about his affair with Cottrell's wife and tried to get him to stop but that he had laughed at him and made fun of him.

Cottrell's further testimony reveals that he was so upset and crazed by these reports, verified by the confession of his wife, that at once "I went into the other room and got my gun and went to Waterford to the store and bought me some shells and went on down to Mr. Cox's"; that on his way to Mr. Cox' home he stopped by Mr. Cumley's, his friend, the blacksmith, and asked if Delbert Cox was there; that he told him he wasn't there and said, "Wait, I want to speak to you a minute"; that they went on the outside of the shop, when Mr. Cumley told him, "Don't you go down there, you are going to get into trouble." "I told him I was already in trouble and I went on down there. He said, 'don't go and kill him.' I said, 'I don't want to kill him, I want to cripple him or do something to stop him running after my wife"'; that he went on to Cox' home and inquired for him, when he was told by Cox' wife that he was not at home, but at Mort Hatfield's, on the adjoining farm, killing hogs; that on learning this "I went on around behind the house and on down the fence and got over the fence in the road and started down there and I began to get sleepy and drowsy and couldn't see hardly, and I got over the fence, the fence was low, over in Mr. George Day's bottom, and I walked on down the fence from there, thought I would get out on the road. I went on down there until I met Delbert. He was right close to me before I saw him. I raised my gun and went to shooting at him. I just went all to pieces and went to shooting."

"Q. Did you curse him? A. I don't think I did. I don't know what I said.

"Q. Do you know what he did? A. No, sir, I just know I went to shooting. That is all.

"Q. Did you lay in wait for Cox? A. No, sir, I don't think so. If I did, I didn't know it.

"Q. If you did, were you at yourself? A. No, sir. I didn't wait for him no place.

"Q. At the time you shot him, state to the jury what your mind was? A. Well, I didn't have any mind. I didn't know what I was doing, nor nothing else.

"Q. Did you know right from wrong? A. No sir.

"Q. Were you able to control your actions? A. No, sir."

The circumstances surrounding the accused's shooting of the deceased upon this occasion were shown by the evidence to be that after looking for Cox at his home that he then went down the field beside the rock fence along the road to a thicket of trees, bushes, and weeds at the corner of the field next the road, where he laid in wait for Cox as he returned by the road to his home; that, as Cox was later passing this place, he shot him three times in his legs as he attempted to run away, severing arteries in his legs, from which wounds, according to the evidence, he soon bled to death.

Upon submission of the case to the jury upon this evidence, the court gave the jury the murder instruction and also an instruction upon manslaughter, directing that, "If, however, the jury believe from the evidence beyond a reasonable doubt, that the defendant ** did ** willfully and feloniously, in sudden affray or sudden heat and passion, without previous malice, and not in his necessary self-defense, shoot at and wound Delbert Cox with a shot gun ** from which shooting and wounding the said Delbert Cox ** died, the jury should find the defendant guilty of 'voluntary manslaughter,' ***" and also gave further instructions applicable to the evidence in the case, not here involved or attacked.

A verdict was returned finding the defendant guilty of the offense of voluntary manslaughter and fixing his punishment at 21 years' confinement in the penitentiary, upon which judgment and sentence was accordingly pronounced.

Appellant has appealed, insisting chiefly upon three grounds for reversal of the judgment: (1) That the court erred in submitting a manslaughter instruction; (2) that it erred in failing to give a self-defense instruction; and (3) that the appellant did not receive a fair trial because of the prejudice of a juror.

We will now discuss and dispose of these objections in the order presented.

The first of these objections is that the court erred in submitting to the jury upon this evidence a manslaughter instruction.

The common-law offense of manslaughter has been subdivided by carving out of it the crime of voluntary manslaughter leaving involuntary manslaughter to be dealt with as at common law. Spriggs v. Commonwealth, 113 Ky. 724, 68 S.W. 1087, 24 Ky.Law Rep. 540. Further, in Bowlin v. Commonwealth, 94 Ky. 391, 22 S.W. 543, 15 Ky.Law Rep. 149, we held that upon a trial for murder, if there is any evidence tending to show the homicide is of the degree of manslaughter, the accused is entitled to an instruction upon that hypothesis, as it is not the province of the court to weigh evidence for the purpose of determining whether the defendant is entitled to such an instruction. It is the duty of a trial court in a criminal case to instruct upon the whole law of the case, whether so requested or not, or, as...

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  • Com. v. Morris
    • United States
    • United States State Supreme Court — District of Kentucky
    • 17 de junho de 2004
    ...punishable only by fine and/or confinement in the county jail. KS § 1127 (repealed 1942 Ky. Acts, ch. 208, § 2); Cottrell v. Commonwealth, 271 Ky. 52, 111 S.W.2d 445, 448 (1937); Spriggs v. Commonwealth, 113 Ky. 724, 68 S.W. 1087, 1088 (1902). Upon the adoption of the Kentucky Penal Code, e......
  • Parsley v. Com.
    • United States
    • United States State Supreme Court — District of Kentucky
    • 3 de outubro de 1958
    ...271 S.W.2d 882; Commonwealth v. Shelton, Ky., 248 S.W.2d 895; Pennington v. Commonwealth, 310 Ky. 265, 220 S.W.2d 556; Cottrell v. Commonwealth, 271 Ky. 52, 111 S.W.2d 445; Cassell v. Commonwealth, 248 Ky. 579, 59 S.W.2d 544; Mansfield v. Commonwealth, 163 Ky. 488, 174 S.W. 16; Gleason v. C......
  • Grissom v. Com.
    • United States
    • United States State Supreme Court — District of Kentucky
    • 11 de junho de 1971
    ...properly gave the voluntary manslaughter instruction and cites Marcum v. Commonwealth, 305 Ky. 92, 202 S.W.2d 1012; Cottrell v. Commonwealth, 271 Ky. 52, 111 S.W.2d 445; and Fitch v. Commonwealth, 267 Ky. 646, 103 S.W.2d 98. All of the cases just mentioned recognize that the instructions in......
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    • United States State Supreme Court — District of Kentucky
    • 1 de novembro de 1938
    ...home, by debauching his child if victim made no overt act or threat against the defendant at the time of shooting him. Cottrell v. Com., 271 Ky. 52, 111 S.W. (2d) 445. The evidence as to this, as hereinabove recited, is not to the effect that the appellant did not understand what he was doi......
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