Breeden v. Commonwealth

• Decision Date: 13 December 1912
• Parties: BREEDEN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

151 S.W. 407

151 Ky. 217

BREEDEN v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 13, 1912

Appeal from Circuit Court, Whitley County.

John Breeden was convicted of malicious shooting and wounding with intent to kill, and he appeals. Reversed.

Tye &amp Siler, of Williamsburg, for appellant.

James Garnett, Atty. Gen., and O. S. Hogan, Asst. Atty. Gen., for appellee.

CLAY C.

Defendant John Breeden, shot and wounded Alvis Sharp. He was indicted by the grand jury of Whitley county for the offense of malicious shooting and wounding with intent to kill. He was tried and convicted and given an indeterminate sentence in the penitentiary of from one to five years. From the judgment of conviction, he appeals.

According to the evidence for the commonwealth, Alvis Sharp was going down the street with his hands by his side, when the defendant, Breeden, stepped out from behind a post and fired at him four times. Two of the shots took effect. According to the evidence for defendant, Sharp had threatened to kill the defendant on sight, and these threats had been communicated to the defendant. The defendant did not know Sharp was in Kentucky, and at the time of the shooting was on his way home. While walking down the street, he saw Sharp a few feet away. Sharp had his hand in his pocket and was trying to get it out, and, believing that Sharp intended to kill him defendant fired at him.

The indictment was returned at the September term, 1911, of the Whitley circuit court. The trial took place at the same term. The defendant filed an affidavit for continuance on account of the absence of several witnesses. The affidavit is in proper form, and shows due diligence. It shows that two or three witnesses, if present, would testify to the fact that they saw Sharp at the time of the shooting, and that he either had his hand in his pocket, or was attempting to get it out, when the defendant fired. It shows that three or four other witnesses would testify to the fact that a few days before the shooting Sharp told them he was going to kill the defendant on sight, and that they communicated this fact to defendant. Of the materiality of this evidence, there can be no doubt. The court forced the defendant into trial without requiring the commonwealth to admit as true the facts which the affidavit stated the absent witnesses would testify to.

By section 189 of the Criminal Code, it is provided that "when the ground of application for a continuance is the absence of a material witness, and the defendant makes affidavit as to the facts which such witness would prove, the continuance shall be granted, unless the attorney for the commonwealth admit upon the trial that the facts are true." By an amendment to section 189, adopted May 15 1886 (Acts 1885-86, c. 1145), it was provided that upon such application "the attorney for the commonwealth shall not be compelled, in order to prevent the continuance, to admit the truth of the matter which it is alleged in the affidavit such absent witness or witnesses would prove, but only that such witness or witnesses would, if present, testify as alleged in the affidavit," with a further provision that the commonwealth is permitted to controvert the statements of such affidavits by other...