Blanks v. Commonwealth
| Decision Date | 09 March 1928 |
| Citation | 223 Ky. 484,3 S.W.2d 1105 |
| Parties | BLANKS v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Muhlenburg County.
Andy Blanks was convicted of manslaughter, and he appeals. Affirmed.
Wilkins & Sparks, of Greenville, for appellant.
J. W Cammack, Atty. Gen., and J. M. Gilbert, Asst. Atty. Gen., for the Commonwealth.
On April 25, 1925, the defendant, Andy Blanks, slew Liberty Holt. Under an indictment charging him with murder, he was tried on April 23, 1926, found guilty of manslaughter, and sentenced to 7 years in the penitentiary. The trial court gave him a new trial because of newly discovered evidence. He was tried again on January 17, 1927, was again found guilty of manslaughter, and his punishment was fixed at 21 years in the penitentiary. He filed six grounds with his motion for a new trial, but the court overruled it, and he has appealed.
A man may make admissions in two ways: First, by his own declarations; second, by failing to deny what others testify against him. According to the admissions of the defendant this killing occurred under these circumstances:
There was bad blood between the defendant and the deceased. The deceased had made many threats against the defendant that had been communicated to him, and for some time this tragedy had been impending. The evening before the homicide Holt came to Blanks' home with a pistol, but Blanks was not at home. The defendant made no effort to avert the tragedy, but armed himself to engage in it. The defendant and deceased lived near each other, the distance from one house to the other is not definitely shown, but there is evidence that they were about 50 feet apart, a little roadway running between them. The defendant says that on the morning of the tragedy he saw the deceased eating his breakfast, and after he had eaten his breakfast he saw him leave his home. He says that as Holt left he saw him put a pistol in his pocket. The defendant says that at that time he was changing his clothing and had not finished putting on his work clothes. He still had on his house slippers. He picked up a double-barreled shotgun rushed out, and resting it on the fence, and pointing it at Holt, said: The deceased stopped. They were about 17 feet apart, and Holt replied, "You are here this morning, are you?" The defendant said, The deceased said, "I came to see you about that dog." About that time Mrs. Holt came out and said, "Mr. Blanks, don't do anything; don't shoot," or something like that. The defendant told her to go back in the house; that he was not going to shoot unless forced to. Mrs. Holt then said, "Come on Liberty, come back in the house." The deceased said to her, "You go on, and shut your mouth." The defendant said, "You have called me a scab and run over and mistreated me ever since I have been here." The deceased said: The defendant replied: Deceased said, "I beg your pardon, my pistol is in the house in the tray of the trunk." Defendant told deceased to keep his hand away from his gun. Deceased said, "There ain't nothing to you anyhow." To which defendant replied, "No, there ain't much to you." According to the witnesses for the commonwealth, the deceased raised both hands, and said: Defendant replied, "If you are not, you ought to be, rather than running around mistreating me and trying to make trouble with me." The defendant again told Holt to take his hand off his gun. Defendant said Holt was trying to put his hand in his pocket to get his pistol. Defendant fired and Holt fell dead. A pistol was found on Holt's body. The defendant says he did not hear Holt's statement about living a Christian life, but practically the same statement was established by witnesses for the defendant.
The alleged error set out in his first ground for new trial is that the verdict is against the law and the evidence. His second is similar, but we find no merit in these contentions, for certainly, if the jury believed the evidence for the commonwealth, the verdict is fully supported and defendant has escaped with a very light punishment. In fact, his own admissions are enough to sustain the verdict. He was in his home in a place of safety. The deceased was on his way to work. Defendant picked up his shotgun, rushed out, hailed deceased, and brought on the difficulty. The deceased was armed, but the defendant had the drop on him and kept it. This case cannot be distinguished from the case of Duke v. Commonwealth, 191 Ky. 138, 229 S.W. 122. There is no merit in the first two grounds.
His next complaint is of the instructions. The court in the first instruction directed the jury to find the defendant guilty of murder if they believed this shooting was done with malice aforethought, and guilty of voluntary manslaughter if it was not done maliciously, but in a sudden affray, etc. The court did not define "affray." Relying upon the case of Gillis v. Commonwealth, 202 Ky. 821, 261 S.W. 591, defendant contends this was error, but we are unable to agree with him. The case of Gurley v. Commonwealth, 218 Ky. 236, 291 S.W. 40, is a complete answer to his contention. He complains of instructions 3 and 4 and says that they are prejudicial because of the omission from them of certain words which we have inserted in them in italics:
No. 3. If the jury shall believe from the evidence that at the time the defendant shot said Liberty Holt he, the defendant Blanks, believed, and had reasonable grounds to believe that he was then and there in danger of death, or the infliction of some great bodily harm at the hands of the said Liberty Holt, and that it was necessary, or was believed by the defendant in the exercise of a reasonable judgment to be necessary, to shoot and wound or kill the deceased, in order to avert that danger, real or to the defendant...
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Berry v. Commonwealth
...we have often written that a case will not be reversed because the jury believed one set of witnesses rather than another. Blanks v. Com., 223 Ky. 484, 3 S.W.2d 1105. defendant was tried by a jury of the vicinage, perhaps members of the jury knew him, and, in all probability, many of them k......
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Huggins v. Caldwell
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Oldham v. Commonwealth
... ... province of the jury, and, if there is evidence of probative ... value sufficient to justify the jury's verdict, there is ... no reason for disturbing it. The jury may believe the ... testimony of one witness to the exclusion of other testimony ... that contradicts it. Blanks v. Com., 223 Ky. 484, 3 ... S.W.2d 1105; Stewart v. Com., 225 Ky. 731, 9 S.W.2d ... In the ... present case there was the positive testimony of one witness ... to the effect that the offense was committed. The defendant ... denies that he was present or committed the offense ... ...
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Wooten v. Commonwealth
...for reversal. The Gillis case was explained in the same manner in Gurley v. Commonwealth, 218 Ky. 236, 291 S.W. 40. In Blanks v. Commonwealth, 223 Ky. 484, 3 S.W. 2d 1105, the contention that "sudden affray" should be defined met with a flat rejection. And finally, in Gibson v. Commonwealth......