Colvin v. Commonwealth
| Decision Date | 14 February 1933 |
| Citation | 247 Ky. 480 |
| Parties | Colvin v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
3. Criminal Law. — Trial judge had discretion to permit jury in trial for manslaughter by automobile to take map, admitted in evidence without objection, to jury room for use in their deliberations (Criminal Code of Practice, sec. 248).
4. Criminal Law. — Reference in argument by attorney assisting in prosecution to "fine fee" defendant's father paid one of his lawyers held not prejudicial to defendant, though unwarranted.
5. Criminal Law. — Court of Appeals cannot modify or reverse judgment on verdict imposing sentence within statutory limits, though apparently excessive under circumstances; commutation or melioration thereof being for Governor.
Appeal from Greenup Circuit Court.
WAUGH & HOWERTON and R.H. RIGGS for appellant.
BAILEY P. WOOTTON, Attorney General, and FRANCIS M. BURKE, Assistant Attorney General, for appellee.
Affirming.
The appeal is by Serl Colvin from a judgment for five years in the penitentiary upon a conviction of voluntary manslaughter in the killing of a little boy named Joe Creech, by the wanton and reckless driving of an automobile. The tragedy occurred in the village of Worthington, Greenup county, about 8 o'clock in the evening of April 9, 1932.
Joe Creech, who was eleven years old, and his brother, Tom, one year older, had been sent by their widowed mother to a nearby store for some hay for her cow. The little boys had built themselves a two-wheel cart and were returning home with the bale of hay on it. They were on the north side of the street, which was the right one for them, and their cart was partly on the earth shoulder of the concrete road, which was twenty feet wide and straight for some distance. The night was dark and rainy. According to the testimony of Tom, there were no cars or other vehicles on the street, except a truck which was being driven by the defendant in delivering groceries for his father. It came in the opposite direction, and was being driven very fast on the wrong side of the street. Its lights were cast upon the boys, but it came ahead at a rapid rate of speed and violently struck the cart and the little boys. The older boy, Tom, was seriously injured, and Joe's neck was broken and he was killed outright. The body of the child was found fifty-two feet from where it appeared the automobile had struck him. The distances from that point to where parts of the cart and the dead and injured boys were found prove that they were struck with a terrific force. The driver of the automobile sped on without stopping. The tracks of the machine showed it had gone so far on the wrong side of the road as to run off the concrete onto the shoulder, and then had been driven back to the right side. The morning after the accident, when the defendant surrendered to the officers, he stated, according to their testimony, that he had not seen the boys until he was right on them, and that he did not stop after striking them because he was scared. He also stated that he had drunk a half pint of whisky before the accident. Some companions of the afternoon testified that he had had a pint of liquor, and, while not drunk when they saw him, yet he was showing the effect of the liquor. The commonwealth thus showed that the defendant was driving very fast on the wrong side of the street of a village, with poor visibility, due to the darkness and misty rain, and probably while he was under the influence of intoxicating liquor.
The defendant testified that he was driving to his father's home on the right side of the street at fifteen or twenty miles per hour when "it seemed like somebody pushed a box out in front of me." He endeavored to miss the object, but struck something that sounded like a board breaking. He slowed down and looked back, but seeing nothing, went on. However, he did not stay either at his own or his father's home that night. The next morning he surrendered to the officers. The defendant denied having had anything to drink during the day, and introduced his father and a number of witnesses who stated that before the accident the defendant was sober, and they smelled no odors of liquor on him. The defendant insisted that the object which he struck, and which proved to be the little boys and their cartload of hay, was on the right-hand side of the road. A woman living at the point testified that as she was getting into bed she heard a truck pass and then a child scream. She ran out and found Tom injured, and he was then on the right-hand side of the road in the direction in which the defendant was traveling. Her husband testified that after the child had been moved he saw part of the cart and...
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