Collingsworth v. Com.

• Decision Date: 25 May 1934
• Citation: 254 Ky. 472,71 S.W.2d 1030
• Parties: COLLINGSWORTH v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

71 S.W.2d 1030

254 Ky. 472

COLLINGSWORTH v. COMMONWEALTH.

Court of Appeals of Kentucky

May 25, 1934

Appeal from Circuit Court, Pendleton County.

Ben Collingsworth was convicted of manslaughter, and he appeals.

Affirmed.

Swinford Swinford & Sims, of Cynthiana, for appellant.

Bailey P. Wootton, Atty. Gen., and David C. Walls, Asst. Atty. Gen for the Commonwealth.

HOBSON Commissioner.

Ben Collingsworth was indicted in the Pendleton circuit court for the murder of Ed Fisher. On the trial of the case he was found guilty of manslaughter and his punishment fixed at nine years imprisonment in the penitentiary. He appeals.

The first ground relied on for reversal is, that the verdict is not warranted by the evidence and that the court should have instructed the jury peremptorily to find the defendant not guilty. The facts shown by the proof are these: Collingsworth and Fisher lived in the same neighborhood. On October 14 1933, Fisher went in his car to the home of Collingsworth and invited Collingsworth to ride with him. They had been friends and rode around for some time in the car. Collingsworth took his banjo along and played. Finally they went to a public house in Falmouth and stayed there until after 11 o'clock. They then went to a garage and Fisher had a new tire put on the car and bought some gasoline. They stayed around Falmouth until 2:15. During all this time they were drinking heavily.

The next morning, about 6:30, Collingsworth appeared at the home of Lawrence Spalding, who lived about five miles from Falmouth and about six miles from where Collingsworth lived. Collingsworth looked like he had been drinking heavily and had been walking a long distance. He said he got lost the night before and made an arrangement with Spalding to take him home. After they got in the car, he told Spalding that he and his buddy got separated in the night and he did not know when it was. He said his buddy was Ed Fisher. He told Spalding that he did not want to go through the main part of the town of Falmouth; he did not want people to see him lost. So they went down a side street. After they got on the Bradford road, which was the road that Collingsworth and Fisher had started home on the night before, they saw on top of the hill a car sitting in the middle of the road. Collingsworth said, "That looks like Ed Fisher's car now." When they passed the car he said, "That is Ed Fisher's car, wonder where he is at." That was all that was said then and they went on to Collingsworth's home, which was a mile or two further. During this ride Collingsworth told Spalding that he and his buddy got held up the night before; that he got separated from his buddy and did not know where he was at; that they were both drinking and that somebody held them up, or that he and Ed had a fight, that he could not remember. Spalding when he came back passed the car and stopped to see what had taken place there. He looked in the car; could not see where anybody had been fighting around there. A banjo was in the car. The switch key was still on. He then looked down in the ditch and saw Ed Fisher. He had been shot, the ball entering near the heart and coming out in the back. Spalding reported the facts to an officer. An officer went to the house of Ben Collingsworth to arrest him. When he drove up in the yard, Collingsworth was sitting in front and ran back in the house. When the officer got to the door, he was standing there with a shotgun in his hand, but he set it down at the command of the officer. The officer asked him who he was with the night before. He said he was out with Ed Fisher. He also asked him if he had had any trouble with him and he said no, and the officer said "Don't you know that Ed Fisher was found dead this morning?" and he said "No." The officer took him in the car, placing him under arrest. When he got in the car, he broke down and went to crying, begging the officer to shoot him, to do anything he wanted to with him, said he...