Bates v. Commonwealth

• Decision Date: 16 November 1928
• Citation: Bates v. Commonwealth, 226 Ky. 318, 10 S.W.2d 1099 (Ky. Ct. App. 1928)
• Parties: BATES v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

10 S.W.2d 1099

226 Ky. 318

BATES v. COMMONWEALTH.

Court of Appeals of Kentucky

November 16, 1928

Appeal from Circuit Court, Letcher County.

Sam Bates was convicted of an offense, and he appeals. Affirmed.

Joe Hall and John D. W. Collins, both of Whitesburg, for appellant.

J. W Cammack, Atty. Gen., and Geo. H. Mitchell, Asst. Atty. Gen for the Commonwealth.

TINSLEY C.

The appellant, Sam Bates, the prosecuting witness, L. O. Jobe and one Geeter English met at the mining camp of the Cameo Mining Company, in Letcher county, on a Saturday afternoon, where a difficulty arose between them. Bates fired two shots during the difficulty. Jobe and English claim that these shots were fired at them, while Bates claimed he fired at a "chunk" lying on the ground between them. In the ensuing scuffle, Jobe knocked the pistol from Bates' hand, and English grabbed Bates, and Jobe secured the pistol and fired a shot at Bates. Thereupon Jobe entered a small room and proceeded to use the telephone, and the testimony for the commonwealth goes to show that Bates then entered that room and stabbed Jobe in the back, inflicting upon him serious wounds. Bates claims that he heard Jobe telephone some one to come and arrest him, and that he approached the door and asked Jobe why he wanted to have him arrested, whereupon he says Jobe struck him, and that he then cut Jobe.

The indictment was returned January 18, 1928. The case was called on January 19, 1928, and then set for trial January 27, 1928, and was tried on that day, resulting in a verdict finding Bates guilty, and fixing his punishment at confinement in the state penitentiary for a term of two years. Seeking a reversal of the judgment pronounced against him on that verdict, appellant urges that the indictment is defective, in that it does not charge that the act was done feloniously; that his motion for a continuance should have been sustained; that the court erred in rejecting certain evidence offered by him; that the court erred in failing to define technical terms used in the instructions; and that, since the trial, he had discovered new and material evidence in his behalf.

1. The indictment in this case was brought under section 1166 of the Statutes, and it is not necessary, in an indictment under that section, to allege that the act charged was done feloniously. Gregory v. Commonwealth, 187 Ky. 188, 218 S.W. 999; Cundiff v. Commonwealth, 86 Ky. 196, 5 S.W. 486, 9 Ky. Law Rep. 537.

2. We are unable to determine the sufficiency of the grounds for a continuance relied on, because the affidavit to support that motion is not in the record. The record shows that an affidavit was filed in support of the motion for a continuance; that the attorney for the commonwealth agreed that the affidavit might be read as the evidence of the absent witness, subject to competency and relevancy; but, because it is not before us, we cannot say whether it meets the requirements of such an affidavit, in showing what steps had been taken to procure the attendance of the witness, whether he was within the jurisdiction of the court, and whether the testimony of the absent witness would in affiant's belief be true; nor can we say whether the court erred in excluding any part of said affidavit not read to the jury. The only witness whose testimony was read from that affidavit is Floyd Fields, and we must assume from the record before us that Fields was the only witness whose absence was shown by the affidavit, and the testimony of this witness so read to the jury only goes to the extent of impeaching the character of the prosecuting witness, Jobe, for peace and quietude.

3. On his...