Blackburn v. Com.

• Decision Date: 28 March 1952
• Citation: 247 S.W.2d 528
• Parties: BLACKBURN v. COMMONWEALTH.
• Court: United States State Supreme Court — District of Kentucky

Page 528

247 S.W.2d 528

BLACKBURN v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 28, 1952.

Edwin R. Denney, Mt. Vernon, for appellant.

J. D. Buckman, Jr., Atty. Gen., William F. Simpson, Asst. Atty. Gen., for appellee.

MOREMEN, Justice.

Appellant, Arie Blackburn, was convicted of voluntary manslaughter of James Smith and sentenced to ten years' confinement in the penitentiary. This is the second appeal of this case. The first opinion may be found in 314 Ky. 22, 234 S.W.2d 178.

The evidence produced by the Commonwealth and that produced by the appellant are in conflict concerning material issues of fact.

The Commonwealth produced one eyewitness to the homicide, Preston Moore, who testified that on the morning of December 5, 1949, he and his nephew, James Smith, drank intoxicating liquor. About noon they went to a restaurant operated by appellant and his brother, where Smith and appellant engaged in conversation about a suit of clothes which Smith desired to sell. Moore related that Smith, thereupon, left the restaurant and returned about 1:30 or 2 o'clock with a bundle under his arm when, for some reason not known to him, an argument arose between decedent and appellant. He stated that Blackburn said, 'Wait a minute'; ran back into the kitchen; returned with a pistol and, without further provocation, shot Smith.

The witnesses produced by appellant testified that Smith on his first trip to the restaurant went into the kitchen uninvited and offered appellant and Ben Thomas a drink which was refused. Whereupon, Smith addressed a time honored provocative remark to appellant who replied in kind. Thereupon, Smith said, 'Arie, you've got the advantage of me, you got a gun and I have not, but Dad's got a good one. I'll go home, but I'll be back,' and left the restaurant. He returned about 45 minutes later; slammed the door behind him; pulled off his jacket; put his hand in his right pocket; walked towards appellant who was standing at the end, but behind, the counter, and again cursed appellant who grabbed a pistol from under the counter and shot Smith when he was a foot or foot and a half away.

The jury accepted the testimony offered in behalf of the Commonwealth and returned a verdict of guilty.

Appellant assigned as grounds for reversal the following errors: (1) the court erred in overruling a motion to discharge the jury and continue the case when one witness testified that appellant's occupation was bootlegging; (2) the court erred in permitting the undertaker, W. H. Cox, to testify that the bullet passed through the intestines, through the liver, through the heart, through the lungs and lodged underneath the skin back of the left shoulder blade; (3) that the action of the mother of the deceased in becoming hysterical at the trial was prejudicial and, finally, (4) the argument of the Commonwealth's attorney contained prejudicial matter.

Lulu Smith, mother of deceased, was asked if she knew appellant's business, and answered, 'He was bootlegging.' Appellant's counsel objected to the answer and moved that the court discharge the jury and continue the case. The court sustained the objection to the answer and gave this admonition to the jury: 'Gentlemen of the jury, you will not let what this witness said about bootlegging influence you in this case.' We are of opinion that this single answer to which an objection was promptly sustained was not prejudicial to the substantial rights of the accused, particularly in view of the court's proper admonition concerning its value. Epling v. Commonwealth, 233 Ky. 407, 25 S.W.2d 1022; Delk v. Commonwealth, 243 Ky. 38, ...