Bradley v. Commonwealth

• Decision Date: 18 December 1923
• Citation: 257 S.W. 11,201 Ky. 413
• Parties: BRADLEY v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

257 S.W. 11

201 Ky. 413

BRADLEY v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 18, 1923

Appeal from Circuit Court, Allen County.

Sank Bradley was convicted of manslaughter, and appeals. Reversed and remanded.

F. R Goad, Thurman B. Dixon, Noel F. Harper, and W. D. Gilliam all of Scottsville, for appellant.

T. B McGregor, Atty. Gen., and Lilburn Phelps, Asst. Atty. Gen for the Commonwealth.

McCANDLESS J.

The defendant and Tom Hughes were jointly indicted in the Allen circuit court charged with the murder of Will Willoughby. In a separate trial defendant was found guilty of manslaughter, and his punishment fixed at 21 years in the penitentiary. In a subsequent trial Hughes pleaded guilty to the crime of manslaughter, and the same penalty was fixed by the jury. On this appeal it is urged that the verdict of the jury is not sustained by the evidence, and that the court erred in the instructions given and in failing to give the whole law of the case.

It appears from the evidence that the defendant was at the time of the trouble a single man, 39 years of age, living with his mother in the town of Scottsville. He was employed by one Reed to haul timber for him, using Reed's team for this purpose. The difficulty occurred on the 7th of May, 1923, at a public spring in that town. The defendant had at that time prepared to haul some heavy logs, but was unable, as he says, to secure any help, and about noon drove his team over to the spring to water them. On his way he met one Tom Hughes, and gave him money with which to purchase some intoxicants called "ginger," which he was to bring to the spring. After watering his team, and while waiting for Hughes, the deceased, Will Willoughby, and his grown son, Orville, both of whom were strangers to defendant, came down with a four-horse team, and unhitched for the purpose of feeding and watering them. Defendant and Willoughby engaged in conversation in reference to a "swap" of their teams, and it seems became irritated with each other; however, nothing serious transpired, and Willoughby left, going over to a lumber yard to collect payment for a log he had delivered. Bradley remained, and shortly afterwards Hughes arrived with the ginger, which they drank, and, according to Bradley he gave Hughes some more money with which to buy whisky, and the latter left in search of it.

Other witnesses say Hughes went off a short distance and sat down by one Bish Calvert, who had come up in the meantime. Willoughby returned to the spring in about half an hour, and the trouble was renewed.

Orville Willoughby states that he remained with the team, and that his father on his return told him to bridle the horses, and walked to the spring to get a drink; that Bradley called him a son of a bitch, caught him, and "slung" him away from the spring; that they clinched, and fell down, with his father on top, and that Hughes got up from a nearby rock on which he and Bish Calvert were sitting, and pulled his father off of Bradley; that Bradley got up and began throwing rocks at his father, and hit him with a stick; that Hughes joined in, the two striking him with sticks and rocks, knocking him down, and continuing to strike him after he was down; that he left to secure the aid of an officer, and on his return his father was unconscious and lying in the same place.

A colored witness, Will Bush, was working at a mill something over 100 yards distant. He could not hear the language of the parties, but saw them. He first saw Bradley and Willoughby going toward the spring, where they motioned their hands at each other; that Bradley threw a rock, but he does not know whether or not he hit Willoughby; that they passed behind a wagon and clinched; that later he saw Hughes and Bradley get rocks and Bradley hit Willoughby on the side of the head, and he fell on his face; that as he arose he was struck again with a stick; also he says Bradley had a knife. Other commonwealth evidence is to the effect that Bradley was intoxicated, and indicates that he and Hughes continued to assault and strike the deceased until he was rendered unconscious, when Bradley went off and sat down, the parties remaining in that situation until the arrival of the officers shortly thereafter.

Bradley testifies that Willoughby became irritated in the first conversation; that at the time of the second trouble Hughes had gone for the liquor, and there was no one else present but Willoughby and his son; that Willoughby told him that he had seen his boss and that he was coming down to take his team away from him; that he called deceased a G____ d____ liar, and that Willoughby jumped down in the branch, and picked up some rocks and began throwing them at him; that he dodged the first one, and stooped to pick up a rock, and while he was in that posture Willoughby struck him on his head and knocked him down and jumped on him, pressing him into the branch, and beating him while down; that he told Willoughby he would give up, and some one pulled Willoughby off of him, and he in a dazed way crawled to one side and sat down in a concrete gutter with his head on his hands; that he saw Tom Hughes strike Willoughby with a stick and knock him down, and as he started to get up Hughes struck him with a rock and knocked him down a second time, and picked up another big rock, and was preparing to strike him again when he threw up his hands and told him not to strike him, and Bish Calvert also told Hughes if he hit Willoughby any more he would sink him into hell; that thereupon Hughes desisted and...