Amburgy v. Com.

• Decision Date: 15 June 1945
• Citation: 188 S.W.2d 437,300 Ky. 261
• Parties: AMBURGY v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

188 S.W.2d 437

300 Ky. 261

AMBURGY v. COMMONWEALTH.

Court of Appeals of Kentucky

June 15, 1945

Appeal from Circuit Court, Harlan County; J. S. Forester, Judge.

Harrison Amburgy was convicted of voluntary manslaughter, and he appeals.

Reversed.

R. L. Pope, of Knoxville, Tenn., for appellant.

Eldon S. Dummit, Atty. Gen., and H. K. Spear, Asst. Atty. Gen., for appellee.

TILEFORD Chief Justice.

Appellant killed Henry Williams by shooting him with a pistol; and this appeal is from a judgment convicting him of voluntary manslaughter and imposing a penalty of fifteen years confinement in the penitentiary. The homicide occurred on the front porch of the Williams' home at Black Mountain during the early morning hours of Sunday, January 28, 1945, following an invitation to appellant, extended by Williams or one of his guests to 'come over here.' Appellant, who played the guitar, Scott Moore, a fiddler, their wives, and Ed Doss had just arrived at Moore's house across the street from the Williams' home 'to play music' when the invitation was extended. According to appellant:

'I went over there and got on the edge of the porch and Henry came out and asked me if I wanted a drink of liquor; I said, 'No, I don't.' He said, 'I want to borrow the gun.' I raised it up, I said, 'O. K honey.' He struck the gun and knocked me off of the porch against the fence, and the gun went off.'

Several witnesses corroborated appellant's account of the killing; but, according to Mrs. Williams and other witnesses for the Commonwealth, Williams resented appellant's conduct and the shot was fired following a scuffle which ensued after Williams had informed appellant that he had rather he did not come in. No antecedent motive for the killing was proven, since the parties had been good friends; but, on the other hand, both had been drinking; Williams was unarmed, and appellant was openly carrying a pistol. Appellant's defense was that the killing was accidental and occasioned by his falling backward off the porch and against the fence. At the same time he admitted that his pistol was of the type which could not be fired unless the trigger was pulled. Under these circumstances it is idle to argue, as appellant's counsel does, that the penalty was so excessive as to evince 'passion, prejudice and bias' on the part of the jury.

In the descriptive part of the indictment as returned, the name, 'Henry Amburgy,' was erroneously inserted in lieu of the name, 'Henry Williams,' so as to charge the appellant with shooting and killing Henry Amburgy. During the impanelling of the jury, the Court discovered this error and called it to the attention of the Commonwealth's Attorney; and on motion of that official, permitted him to insert the name, 'Henry Williams,' in lieu of Henry Amburgy at the place indicated. Appellant argues that this was error entitling him to a reversal, but we are unable to agree. See Criminal Code of Practice, Section 125, and Grigsby v. Commonwealth, 299 Ky. 32, 184 S.W.2d 77.

'About a minute, or something like that,' after the shooting, appellant handed the pistol to Moore, and through his counsel avowed that if the Court had permitted him to do so, he would have testified that when he delivered the pistol to Moore, he told him that 'Henry Williams had struck the pistol and knocked him...