Colley v. Commonwealth

• Citation: 12 S.W. 132
• Parties: COLLEY v. COMMONWEALTH.
• Decision Date: 28 September 1889
• Court: Court of Appeals of Kentucky

12 S.W. 132

COLLEY v. COMMONWEALTH.

Court of Appeals of Kentucky.

September 28, 1889

Appeal from circuit court, Calloway county; C. L. RANDLE, Judge.

"Not to be officially reported."

J. G Gilbert, Campbell & Coleman, G. A. C. Holt & Son, and Wm Reed, for appellant.

P. W Hardin, Atty. Gen., for the Commonwealth.

HOLT J.

The killing of John Dores by the appellant, Frank Colley, was witnessed by many persons. It was at a public gathering, and, as might therefore be expected, the testimony is somewhat conflicting as to the circumstances of it. It is substantially shown, however, that the appellant and his brother, William Colley, were at a barbecue gotten up by and under the control of Dores and two other persons. The dinner tables were inclosed by a wire, and the two brothers had gone within it to get their dinner. Dores was also there. William Colley was drinking, quarrelsome, and abusive. He was not only cursing, but using indecent language. Women as well as men were present. Dores went to him in a kind manner several times, and asked him to be quiet, and he as often promised to do so. Failing to comply, however, Dores at last told him he must go outside of the table inclosure, and proceeded in a quiet and kindly manner to lead him out. As he did so, however, the appellant told him in substance that he could not take his brother out, and if he did so he would kill him, at the same time drawing his pistol. Dores took William out at the entrance through the wire inclosure, however, and there left him, returning at once to the table, and immediately opposite the appellant. Arriving there he stretched out his hands towards the appellant, and, calling him an offensive name, with an oath told him in substance to shoot if he was ready, and thereupon appellant did so, from the effect of which Dores soon after died. There is testimony tending to show that the latter, after he was shot, also fired at the appellant, and also wounded him with a knife. An old grudge existed between the parties. the character of which is not disclosed; and during the evening of the shooting the appellant repeatedly said that he had done what he came to the barbecue to do, did not regret it, and, if it were to do over, he would do it again. He has appealed from a conviction for manslaughter for the act.

The evidence is sufficient to support the verdict, and will not be further noticed, save so far as it may be necessary in considering such legal questions as we deem important.

It is urged that the lower court permitted the introduction of incompetent evidence. Just as Dores left William Colley after takhim outside of the wire, and when the latter was within probably 10 feet of the appellant, William called out: "Shoot the damned son of a bitch." It is claimed that it was error to permit this to be proven by the commonwealth, and also to prove his boisterous conduct and bad language just prior to his being taken from the dinner table. We do not think so. All was within hearing distance of the appellant. He was present. It was all a part of the res gesta and of one continued transaction. It is true, the statement of a by-stander in no way acting in concert with either of the parties to a transaction does not constitute a part of the res gesta. But if what is said during the transaction proceed from either of the parties engaged in it, or from one acting in concert with them, then it is a part of it, and may be proven to show the character or quality of the transaction. Bradshaw...