Brown v. Commonwealth

• Decision Date: 18 April 1906
• Parties: BROWN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

92 S.W. 542

122 Ky. 626

BROWN v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 18, 1906

Appeal from Circuit Court, Monroe County.

"To be officially reported."

Benton Brown was convicted of voluntary manslaughter, and he appeals. Affirmed.

Geo. T Duff, Duff & Hutcherson, Miller & Jackson, Sherman Spear, and W. H. Walden, for appellant.

Baird &amp Richardson, N. B. Hays, Atty. Gen., and C. H. Morris, for the Commonwealth.

SETTLE J.

Appellant was tried in the Monroe circuit court under an indictment returned by the grand jury of that county which charged him with the willful murder of Jeff Harlan. By the jury's verdict he was found guilty of voluntary manslaughter, and his punishment fixed at confinement in the penitentiary 21 years. The lower court refused him a new trial, and he has appealed.

Appellant's defense was accidental homicide. According to the evidence Harlan was shot and killed by appellant at the door of the store of John Roton, in Tompkinsville, on the night of December 24, 1904. Appellant and deceased were about the same age, 21 years, had known each other from boyhood, and were apparently the best of friends. According to the testimony of John Roton, in whose store appellant was then employed as a salesman, the latter, in a conversation with him after the killing of Harlan, and as they were following the body to the hotel, to which it was removed, said: "I would not have killed Jeff for anything on earth. He was the best friend I had." No motive for the homicide was shown upon the trial, unless it grew out of something that took place in a conversation between appellant and deceased in front of the store a few minutes before the shooting, in the hearing of Little Crawford, who testified that appellant then remarked to Harlan that he was going that night to a popcorn party. Harlan said to him, "If I were you, I would not go, for you are drinking," to which appellant replied, "he did not care a damn what he did." As Crawford then went into the store, he heard no more of the conversation, if it was continued. There is no doubt from the evidence that appellant was to some extent under the influence of intoxicants that night and at the time of the shooting indeed, he admitted it when testifying in his own behalf, and after the shooting he evidently became more intoxicated, for he testified that after following the body of Harlan to the hotel he knew nothing of what happened during the remainder of the night, though he was afterwards arrested and put in jail.

There were several things said and done by appellant immediately after the shooting that appear to be inconsistent with his innocence; for instance, though numerous inquiries were made in his presence by individuals of the gathering crowd as to the identity of the slayer of Harlan, he made no reply, and upon being directly asked by several persons, among them a brother and sister of deceased, who had shot him, he said he did not know, and in reply to one or two of these inquiries he said deceased must have been shot by a stray ball, as he was not shot from the store, and, furthermore, that, if the shooting had occurred from the store, it would have been manifested by powder smoke in the store. These statements, attributed to him, appellant denied; but we think the great weight of the evidence was to the effect that they were made by him, and that he did not in fact admit his identity as the slayer of Harlan until the pistol with which he did the shooting was found by Roton, with one of its chambers containing an empty shell, and still warm from the firing of the shot. Although there were several persons besides appellant in the store at the time of the killing of Harlan, nearly all of them were at the rear end of the room, and it is a singular fact that not one of them claimed to have seen the shooting, though all heard the report of the pistol. Two or three of them, upon hearing the report, looked toward the front door, and saw appellant standing with his back to them and his face to the door. At the time one Bert High was in front of appellant, holding him by the shoulders. As High was the only witness near appellant when he shot Harlan, we here quote from the record the material parts of his testimony: "I was in Roton's store when Harlan was killed. Myself and Brown [appellant] were the only persons present. When the pistol was discharged, Harlan was in 2 1/2 or 3 feet of Brown. The defendant came around there with the pistol. I said to him, 'What are you going to do?' He said he was going to shoot. I asked him if it was loaded. He said he reckoned it was if he got hold of the right one. I said: 'You must not do that. They are liable to pull you.' I guess then in about a minute Harlan stepped to the door, and he said, 'Do not shoot.' About the time he said, 'Do not shoot,' I turned and looked down toward the other end of the store. About the time I looked down there the pistol fired. I do not think he intended to shoot Harlan. I saw Harlan, and knew him when he spoke. The light was shining out at the door. I was facing the door, and Brown's right side was turned towards the end of the counter. After the shooting, I laid my hands upon Brown's arms. I am not related to either party, but was friendly to both. The last I saw of the pistol before it fired, Brown had it down by his side." The fact that Harlan was close to appellant when shot was demonstrated by the powder burns on his face. He must have been shot, too, while in the act of talking to appellant, as the pistol ball entered his mouth without touching his lips or teeth, severed the spinal cord, and broke the neck at the base of the brain. According to the testimony of Dr. Duncan, a skilled surgeon, Harlan's death must have been instantaneous.

Appellant testified in his own behalf to the effect that he and deceased were intimate friends, and that no trouble or misunderstanding had ever arisen between them; that on the night of the homicide no such conversation occurred between them as was related by Crawford, though he admitted that he and deceased were together out in front of the store when Crawford made his appearance; that he had with Crawford the conversation about some article he wished to purchase from the store, as testified by the latter; and that, leaving deceased in front, he and Crawford went into the store to get the desired article, after which appellant went out of the store, took a drink of whisky with Crawford, then returned, and had a talk with Harlan, who had in the meantime entered the store. According to appellant's further statement he then went to where two pistols were kept under the counter; one being out of repair and unloaded, and the other loaded and in proper condition for use, and getting, as he believed, the unloaded pistol, he walked toward and near the door, carrying it in his right hand. What followed will better appear from appellant's own language: "Bert High then asked if the pistol was loaded, and I told him it was, and I thought I would go out and shoot it off. Seeing this scared him, I told him it was not, and I thought it was not. I took hold of the pistol to show him it was not, and at this juncture it was discharged, and killed Harlan, who I did not see, just as he was about to enter the storehouse. It went off accidently, and if he [Harlan] said, 'don't shoot,' I did not hear him. I saw some one just after the pistol went off sinking down. I was greatly excited, and asked what it was, for I did not know who it was." The case was properly allowed to go to the jury. There was some testimony conducing to prove that the shooting was intentionally or wantonly and recklessly done by appellant, and some that it was accidental; but the jury, having weighed all the evidence, came to the conclusion that appellant's defense of accidental killing was without merit, and therefore found him guilty of voluntary manslaughter. Their finding is conclusive of the question of his guilt, unless there was some error of law committed by the trial court which can be said to have prejudiced his substantial rights.

Appellant insists that the lower court erred in instructing the jury and in refusing certain instructions asked by him. The instructions complained of are numbered 1 and 3a. The first advised the jury in what state of case they might...