Taylor v. Commonwealth
| Decision Date | 27 September 1940 |
| Parties | TAYLOR v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Madison County; W. J. Baxter, Judge.
Frank Taylor was convicted of voluntary manslaughter, and he appeals.
Affirmed.
Ross Ross & Bayer, of Richmond, for appellant.
Hubert Meredith, Atty. Gen., for appellee.
Frank Taylor was convicted of voluntary manslaughter and sentenced to twenty-one years' imprisonment. Failure of the Court to instruct the jury properly and to admonish them as to the effect to be given certain testimony introduced by the Commonwealth in rebuttal are urged as reversible errors. It is also contended that appellant should have been granted a new trial because of newly discovered evidence.
The alleged defect in the instructions consisted of the grouping in one paragraph under one numeral of the facts which would authorize the jury to convict either of murder or manslaughter, and the omission of the words "upon provocation ordinarily calculated to excite passion beyond control" from that portion of the instruction which informed the jury that they should convict of manslaughter if they believed from the evidence that the homicide was committed "in sudden affray, or in sudden heat and passion without previous malice." It is true, that the omitted words are included in the instruction recommended in Hobson, Blain & Caldwell's work on Instructions to Juries, Section 742, and approved in Ball v. Commonwealth, 125 Ky. 601, 101 S.W. 956, 31 Ky.Law Rep. 188, and perhaps other cases; but it is also true that their omission from an instruction has been held by this Court not to be error. Thurman v. Commonwealth, 142 Ky. 347, 134 S.W. 174. There might be circumstances under which the incorporation of the words referred to in an instruction on manslaughter would aid an accused, but we are unable to perceive how the appellant could have been prejudiced by their omission as he claimed to have shot the deceased solely because he believed the deceased was about to shoot or cut him. In fact, there was so little provocation for the killing, according to appellant's own testimony that he was fortunate in not having been convicted of murder after the jury had rejected his plea of self defense.
The testimony, the effect of which appellant claims should have been limited by an admonition from the Court, consisted of a statement by one Cap Powell that approximately sixteen months prior to the homicide the appellant had said to him that he didn't like George Vickers, the deceased, and that if Vickers ever made a crooked move around him it would be the last one he would ever make. Appellant had been asked if he had made the statement and had denied making it, and hence the testimony complained of was a contradiction. But it would have been equally admissible as substantive testimony, since it tended to show motive, and in view of that fact it was not necessary for the Court to instruct the jury that they could consider it only for the effect it might have on appellant's credibility. Castle v. Commonwealth, 228 Ky. 151, 14 S.W.2d 387; Lay v. Commonwealth, 217 Ky. 99, 288 S.W. 1047. Moreover, the record fails to disclose that appellant objected to the question propounded to Powell or to Powell's answer, or that appellant requested the Court to admonish the jury. Atkins v. Commonwealth, 224 Ky. 126, 5 S.W.2d 889; Turner v. Commonwealth, 185 Ky. 382, 215 S.W. 76.
The newly discovered evidence, according to an affidavit filed in support of the motion for a new trial, consisted of the testimony of Virgil Todd and Anna Todd, strangers to appellant, that about a week prior to the killing they had had a conversation with the deceased, Vickers, in which he had said that he had lived on appellant's place and could not "get along" with him, and that he, Vickers "thought that he was going...
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