Sparks, &C., v. Commonwealth

• Citation: 89 Ky. 644
• Parties: Sparks, &c., v. Commonwealth.
• Decision Date: 26 May 1885
• Court: Court of Appeals of Kentucky

89 Ky. 644

Sparks, &c., v. Commonwealth.

Court of Appeals of Kentucky.

May 26, 1885.

APPEAL FROM LAUREL CIRCUIT COURT.

W. O. BRADLEY FOR APPELLANT.

BOYD & CRAFT, EWELL & RAMSEY OF COUNSEL ON SAME SIDE.

P. W. HARDIN, ATTORNEY-GENERAL., FOR APPELLEE.

JUDGE LEWIS DELIVERED THE OPINION OF THE COURT.

James Sparks and William C. Graves having been tried together, each convicted of manslaughter, and sentenced to the penitentiary for twenty-one years under a joint indictment, charging them and one William Hodges with the murder of Walter Killion in pursuance of a previous conspiracy, prosecute this appeal. Hodges, demanding a separate trial, is not a party to the appeal.

The homicide was committed in a small village in Laurel county, called Lilly, a railway station, in front of and near to a storehouse where appellants, as partners, were engaged in selling goods, beer, and probably spirituous liquors. In the side or end of the store-house fronting the street and railway depot, about fifty steps off, was a door, and a window on each side of it, and from one of the windows was fired at the deceased a shotgun, and from the other a pistol, both of which took effect, and very soon after receiving the last wound he fell and died. The evidence shows that a week or two before he was killed, without any sufficient cause appearing, the deceased took offense at Sparks, and to a witness made a threat of violence, cursing him at the same time. One week before he was killed the deceased went to the store-house of appellants and purchased a quart of whisky, but refusing to pay the price asked, and threatening to make Graves, who had filled his botble, take a less sum for it, Sparks interposed, and to prevent a fuss, as he said, offered himself to pay the difference, whereupon the deceased, without any provocation, turned upon him with a drawn pistol, compelled him to hold up his hands to show he was not armed, and Sparks, in fear of losing his life, ran out of his store-house, followed by the deceased, who fired two or three shots at him as he ran. A day or two afterward the deceased told a witness he would have to kill Sparks. On the day of the killing the deceased, who appears not to have been a resident of the place, went to Lilly, and, in company of others, took position on the depot platform, where, for some time during the afternoon, they engaged in dancing, drinking and firing pistols; and afterwards the deceased was seen going up the road with a pistol in his hand, calling to one Moore to stop, but the latter went on, and the deceased, without provocation, shot at him, near to where were women; and soon afterward the deceased said to a witness, with an oath, that they (mentioning no names) had said he, deceased, could not come to Lilly, but he had run Moore off, and he would run Sparks and Graves off, or shoot their entrails out; and to another witness he said, with an oath, Jim Sparks shall not live and stay in Lilly. A short while after this the deceased requested one Hopkins to go with him and help him whip Sparks and Graves, which Hopkins declined to do, whereupon he upbraided Hopkins for cowardice, who told him they had been loading shotguns down there — meaning at the store-house of Sparks and Graves — all the evening, and that he, deceased, must not go. To this the deceased replied profanely, "I can whip them both;" and unbuttoning his vest and the top button of his pants, drew his pistol up a short distance, but not out, and, with his hand on it, started from where he then was — near Johnson's store — for appellants' store, fifty or sixty yards off, and, though remonstrated with, continued to advance, and when he got to within about eight feet of the window the first shot was fired from the window at him, and then he fired. He then crossed the platform, as some witnesses testify, first trying to force the door, to the other window, from which another shot was fired at him, the deceased himself firing three shots from first to last.

The evidence is somewhat conflicting as to the precise attitude of the deceased when the first shot was fired from the window at him. All the witnesses agree that his right side was towards the house, but there is evidence tending to show that when first fired at his right hand was raised, and...