Alford v. Commonwealth

• Decision Date: 19 April 1932
• Parties: ALFORD v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

50 S.W.2d 1

244 Ky. 27

ALFORD v. COMMONWEALTH.

Court of Appeals of Kentucky

April 19, 1932

Appeal from Circuit Court, Harlan County.

Mitchell Alford was convicted of voluntary manslaughter, and he appeals.

Affirmed.

Chas B. Spicer, of Harlan, for appellant.

Bailey P. Wootton, Atty. Gen., and H. Hamilton Rice, Asst. Atty Gen., for the Commonwealth.

RICHARDSON J.

This appeal presents for review the admissibility as evidence of certain portions of a dying declaration, and the ruling of the court on a motion for a new trial on the ground of newly discovered evidence.

The appellant shot and killed Ap Williams for which he was indicted for willful murder, convicted of voluntary manslaughter, and sentenced to the penitentiary for a period of ten years.

Mrs. Ap Williams, Henry Noe, Bill Noe, Lester Williams, and George Williams were present at the time of the killing. They testified in behalf of the commonwealth. As the two shots were fired by the appellant, which produced the death of Ap Williams, Henry and Bill Noe claim they ran from the scene. Mrs. Ap Williams, Lester and George Williams claim they remained. They claim that the deceased did not have at the time a pistol, which appellant claims he had in his hand immediately before and at the time the two shots were fired by him. George Williams was twelve years of age at the time. He claims that he was sitting in a car within a few feet of the appellant and Ap Williams at the time the appellant fired the two shots; that immediately he ran into the house and obtained a pistol, returned, and gave it to his father, Ap Williams, who fired it at the appellant.

During the day on which the tragedy occurred, Ap Williams had been away from home, at different places, in the presence of Jonah Mitchell, Mrs. Jonah Mitchell, Finley Smith, and Willis Johnson, and perhaps others, who claim they observed a large pistol on his person. When he returned home the appellant was present. He had been at the home of Williams about thirty minutes before Williams returned. On returning to his home Williams came by his residence, passed the appellant, and "laid something on the porch," then he returned to where the appellant was, and remained until the shooting occurred. Thus the deceased's possession of the pistol when away from home during that day, as well as the fact that he did not enter his home after his return and before the shooting occurred and leave the pistol where George Williams claims he obtained it after the appellant fired the two shots, is abundantly shown. The appellant claims the deceased first drew his pistol and made a demonstration to shoot him before he fired the two shots. The testimony of Johan Mitchell and Mrs. Johan Mitchell, Finley Smith, and Willis Johnson, together with the fact that the deceased did not enter his home after his return thereto before the shooting began, strongly corroborates the theory of the appellant, although the testimony of George Williams tends to contradict it.

In support of his motion for a new trial predicated on the ground of newly discovered evidence, he filed the affidavits of Pearl Holcomb, Lily Belle Cook, John Holcomb, and Jim Holcomb, wherein it is stated that on December 7th, after the appellant's conviction, Lester Williams and Mrs. Ap Williams stated to each of them that "they put the thing over defendant on the trial, and that they got the little boy, George Williams, to testify, and tell what he did tell on the trial, and that he got by mighty well to be swearing a lie, that is that Ap Williams did not have his pistol at the time he was killed, and fire the first shot."

It should be conceded that these statements of the witnesses are no more than additional testimony tending to contradict the testimony of George Williams, Mrs. Ap Williams, and Lester Williams, relating to the deceased not having possession of the pistol before nor at the time the appellant fired two shots at Ap Williams.

The affidavits of these witnesses contain the further statement that they had heard the deceased a short time before the killing make certain threats against the appellant.

Subsection 7 of section 340 of the Civil Code of Practice, which is applicable in criminal prosecutions, provides that a new trial may be granted on the ground of newly discovered evidence, material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial. The effect of this Code provision, on an application for a new trial on the ground of newly discovered evidence, is, it requires that the affidavit of the witness as to his evidence and also of the applicant must show that he did not know, and in the exercise of reasonable diligence could not have known, of such evidence before the trial. The omission thereof from the affidavit of the witness and of the appellant of such statement is fatal. Montgomery v. Com., 220 Ky. 311, 295 S.W. 153; Ellis v. Com., 146 Ky. 715, 143 S.W. 425.

It is not shown in the affidavits of the witnesses, nor in the affidavit of the appellant, that this rule of practice was recognized and complied with relative to the alleged threats made by the deceased against the appellant in the presence of these witnesses.

The above rule is not applicable to and does not control the statements of these witnesses relative to those made to them by Mrs. Ap Williams and Lester Williams, subsequent to the appellant's trial. The statements of these witnesses in this respect are merely cumulative, impeaching evidence tending to contradict their testimony that deceased had no pistol until George Williams gave it to him. Newly discovered evidence merely cumulative will not authorize a reversal. May v....