Combs v. Commonwealth

• Decision Date: 08 March 1894
• Citation: 25 S.W. 592
• Parties: COMBS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

25 S.W. 592

COMBS v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 8, 1894

Appeal from circuit court, Breathitt county.

"Not to be officially reported."

Richard Combs was convicted of manslaughter, and appeals. Affirmed.

J. B Marcum, for appellant.

W. J Hendrick, for the Commonwealth.

HAZELRIGG J.

The appellant was indicted jointly with one James Miller for the murder of Shade Combs, and upon trial was convicted of manslaughter, and sentenced to the penitentiary for five years. One of the counts of the indictment charged Miller with the killing, and appellant with aiding, abeting, etc. He complains that incompetent testimony was permitted to go to the jury, prejudicial to his substantial rights, and that misleading and improper instructions were given in behalf of the commonwealth. The proof shows that Shade Combs (afterwards killed by Miller) was going peaceably by the storehouses of Field and Jones, with a team of oxen, near the mouth of the Buckhorn, in Breathitt county, where some 25 or 30 men-some of them drinking-were engaged in a shooting match. One Fugate fired off his pistol near the deceased, and some angry words passed between them. The deceased, however passed on, with his son and others traveling with him, and stopped at the Jones House, some 20 yards distant up the hill, and went in the house. The appellant then came up to the house, with a pistol in his hand, and pointed it in at the door, at which time Jones, the proprietor, came up from his store, went into his house, got his gun, and ordered the appellant away, telling him that if he shot in his house he would kill him. The appellant and Jones then left, and shortly afterwards the deceased and his friends went down to Field's store, and were taking a drink, when the appellant came in, holding his hand under his coat. Some unfriendly words passed, and appellant left the room. Shortly, he was seen just above the store, when he fired his pistol down towards the house, the bullet coming in according to some of the proof, while the crowd with him cried out, "We have got them now," etc. The deceased appears to have been unarmed, and doubtless expected an attack on the house. He left hurriedly, and went into the other storehouse, (Jones',) a few feet, only, away, and got a gun. On his return, and when he had reached the door of Field's store, the firing commenced between himself and the appellant, the proof being conflicting as to whether the appellant or the deceased fired first. While so engaged, and...