Brummett v. Commonwealth

• Decision Date: 23 September 1930
• Citation: 235 Ky. 322,31 S.W.2d 391
• Parties: BRUMMETT v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

31 S.W.2d 391

235 Ky. 322

BRUMMETT v. COMMONWEALTH.

Court of Appeals of Kentucky

September 23, 1930

Appeal from Circuit Court, Wayne County.

Andrew Brummett was convicted of murder, and he appeals.

Affirmed.

E Bertram, of Monticello, for appellant.

J. W Cammack, Atty. Gen., and James M. Gilbert, Asst. Atty. Gen for the Commonwealth.

WILLIS J.

Andrew Brummett shot and killed Tom Coffey, a colored man, and was condemned to serve in the penitentiary a life sentence for the crime. He seeks reversal of the judgment of conviction upon several grounds which will be discussed and disposed of in the course of the opinion.

Brummett's wife had caused a warrant to be issued for his arrest, and, as two officers approached to execute the warrant, they saw Tom Coffey with a butcher knife attempt to assault Brummett. Brummett dropped from a fence on which he was sitting and entered his shoe repair shop. The officers took Coffey in charge, Brummett reappeared with a shotgun, and shot Coffey in the back. His claim was that he shot in defense of one of the officers. It appears from the evidence that Coffey and Brummett had been in an altercation a few minutes before the fatal one. Both men were shown to bear bad reputations, and both at the time were under the influence of intoxicating liquors.

The complaint of the instructions is limited to a failure to define "sudden affray," as used in one of them. The criticism is without merit. The court advised the jury that, if the killing was "in sudden affray, or in sudden heat or passion, upon provocation reasonably calculated to excite the passions beyond his power of self control, without previous malice," the offense committed would be voluntary manslaughter and the appropriate punishment would be confinement in the penitentiary for a period of not less than two, nor more than twenty-one years, in the discretion of the jury.

The evidence in the case was so simple, and the instruction so easily understood, that no need was apparent for a definition of the words "sudden affray." Thurman v. Commonwealth, 142 Ky. 347, 134 S.W. 174; Cavanaugh v. Commonwealth, 172 Ky. 799, 190 S.W. 123. It is conceivable that a case could arise where some explanation of what constituted a sudden affray might be proper (cf. Gillis v. Commonwealth, 202 Ky. 827, 261 S.W. 591; Fletcher v. Commonwealth, 210 Ky. 71, 275 S.W. 22; and Gurley v. Commonwealth, 218 Ky. 236, 291 S.W. 40), but nothing in the present case called for any such precaution.

Argument is advanced to the effect that the verdict is palpably against the evidence, but the abridged statement of the facts already made illustrates that the contention is lacking in plausibility. Wright v. Commonwealth, 221 Ky. 226 298 S.W. 673; Brown v. Commonwealth, ...