Bowlin v. Commonwealth

• Decision Date: 23 June 1922
• Citation: 195 Ky. 600,242 S.W. 604
• Parties: BOWLIN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

242 S.W. 604

195 Ky. 600

BOWLIN v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 23, 1922

Appeal from Circuit Court, Whitley County.

Henry Bowlin was convicted of maliciously shooting and wounding another without killing him, and he appeals. Affirmed.

J. B Snyder, of Williamsburg, Snyder & Adkins, of Harlan, and Stephens & Steely, of Williamsburg, for appellant.

Chas I. Dawson, Atty. Gen., and Thos. B. McGregor, Asst. Atty Gen., for the Commonwealth.

THOMAS J.

On his trial in the Whitley circuit court under an indictment charging him and Owen Carr (sometimes referred to in the record as Kerr) with the crime of malicious shooting and wounding another without killing him, the appellant, Henry Bowlin, was convicted, and his punishment fixed at three years' confinement in the penitentiary. His motion for a new trial was overruled, and from the judgment pronounced on the verdict he has appealed.

The errors relied upon for a reversal of the judgment by appellant's counsel in their brief are: (1) The admission of incompetent evidence offered by the commonwealth over appellant's objections; and (2) that the court misinstructed the jury and failed to instruct it upon the whole law of the case. We will determine these grounds in the order named, but it will be necessary to a proper understanding of them to make a brief statement of the facts, which the testimony as a whole tended to establish.

The prosecuting witness, who is alleged in the indictment to be the victim of the crime, was Milford Bray, who lived with his wife on the top of Pine Mountain in Whitley county near the line between it and Bell county. Between a quarter and a half mile beyond the residence of Bray lived appellant with his wife and one infant child, and about 75 or 100 yards from his residence the defendant Carr, or Kerr, resided on his place as his tenant, and whom we will hereafter refer to as "Carr." Between two and three miles beyond the residence of appellant and down the mountain appellant's father-in-law, Bob Jones, and his family resided, just in the edge of Bell county. Some time during the day of June 22, 1921, Bray shot and wounded a dog belonging to appellant, which he testified was worrying his sheep. Bray and his wife, who were introduced by the commonwealth, testified in substance that between 8 and 8:30 on that night they were aroused from their sleep, having theretofore retired, by a call at or near the gate of, "Hello, Milford;" that Bray got up and went to the door, and the one who had called him invited him "to come out and let us have a talk a while," when he answered that he was in his nightclothes, and for the person to come in, to which answer was made "You killed my dog, did you?" to which Bray answered, "I don't know but I tried to; he was on my sheep." Whereupon the person at the gate said: "G____ d____ you, I will kill you;" and immediately fired a shotgun, the load from which struck Bray and filled his body with small shot practically from his hips up, none of the wounds being serious. Bray testified that when struck he fell, and did not notice or observe what else occurred, but his wife testified that two pistol shots were fired shortly thereafter, and two bullet holes were found in the door facing close to where Bray was standing. Both witnesses testified that they were familiar with appellant's voice, and that he was the one who called, and Bray said that when he went to the door he saw the bulk of two men.

Garret Teague, a witness introduced by the commonwealth, testified that he went with appellant to the latter's house on the afternoon of the day in question, arriving there between 2 and 3 o'clock, and that Owen Carr was there when they first arrived; that some time thereafter Carr went away, and at about sundown returned and informed appellant that Milford Bray had shot his dog, and had sent him word that if he "didn't like it to come down, and he would give him the same kind of a dose"; that immediately Carr took a shotgun from a rack over appellant's door, and the latter took a pistol, belonging to witness, and started toward the residence of Bray, when witness, without effect admonished them not to do so. Witness heard some shots in the direction of Bray's house, but did not remember the number, and in a short while defendants returned, and witness with appellant and his family left and went to the residence of Bob Jones in Bell county, where they spent the night and a part of the next day.

Appellant and his codefendant, Carr, in their testimony admitted that they were with the witness Teague at appellant's house on that afternoon, but they denied that either of them singly or both of them together went to the home of Bray at any time that day, or that they were in front of his house or called him out or shot at him, and that they knew nothing of the shooting of appellant's dog until the next day. They corroborated Teague, however, upon the fact that he went with appellant and his family to the home of the father-in-law in Bell county, where they spent that night and some of the next day. The father-in-law and one or two members of his family, a brother of appellant, and one or two other witnesses attempted to fortify the alibi by testifying that appellant was at the father-in-law's home somewhere between 6 and 7 o'clock that night, when it was yet daylight, and that he remained there throughout the night. No one looked at a timepiece except one witness, to whom Teague telephoned and requested witness to come to the home of Jones and play the fiddle, which witness testified he did. That witness claims to have looked at his watch, and it was then about 7 o'clock, but he is the only one who attempts to speak with such accuracy. There are other circumstances in the case pointing more or less to the guilt of appellant, one of which was that after the indictment he was quite active in trying to convict the prosecuting witness, Bray, with some violation of the prohibition law with evidence strongly bearing the earmarks of having been "salted," and that he participated in the "salting"; but we do not deem it necessary for the determining of the questions presented on the appeal to further rehearse the testimony, since it will at once appear that it was abundantly sufficient to sustain the verdict of the jury, and there is nothing in the record supporting the argument of counsel that the prosecution is malicious and without foundation.

Taking up now the grounds urged for a reversal, and directing our attention first to ground (1), we find that the only action of the court necessary to be considered thereunder was the admission of certain testimony by the witness Teague, given by him in rebuttal, contradicting the witness Carr after the proper foundation had been laid for its introduction. Carr when on the stand, was asked by attorney for the commonwealth if he did not state in the presence of appellant and Garret Teague, after the first two had returned from the home of Bray on that night, that "he (Carr) heard Milford Bray fall after they shot." Carr denied making such statement, and Teague was introduced in rebuttal, and testified to it over appellant's objections, but the court did not tell the jury the purpose for which it was admitted, and it is this alleged improper evidence of which complaint is made under this ground. If we were to view this evidence as admissible only for impeaching purposes, it is doubtful if it, though admitted without any admonishment by the court, was sufficiently prejudicial to authorize a reversal of the judgment. That under...