Commonwealth v. Little

Decision Date11 November 1910
Citation140 Ky. 550
PartiesCommonwealth v. Little.
CourtKentucky Court of Appeals

Appeal from Breathitt Circuit Court.

JAMES BREATHITT, Attorney General, and TOM B. McGREGOR, Asst. Attorney General, for appellant.

OPINION OF THE COURT BY JUDGE NUNN.

Appellee was indicted by a grand jury in Breathitt county charged with the murder of Harlan McIntosh by shooting him with a pistol. After the Commonwealth introduced its testimony, the court, upon the motion of appellee, gave the jury a peremptory instruction in his behalf, which was complied with by the jury, and the Commonwealth has appealed to have the law of the case certified.

The only question presented is whether or not the lower court erred in sustaining appellee's motion for the peremptory instruction, and this depends upon the fact as to whether or not there was any evidence introduced showing appellee's guilt. We have examined the evidence with care, and find it is to the effect that appellee killed Harlan McIntosh on Turkey Creek in Breathitt county, in May, 1909, by shooting him with a pistol; that the killing occurred about one hundred yards from the home of Luther Little about three or four o'clock in the afternoon. The Commonwealth introduced the wife of Luther Little and she testified, in substance, that appellee and Harlan McIntosh came to their house about three o'clock in the afternoon, remained a few minutes and then went down the branch along a path or road; that when they reached a point about one hundred yards from the house they stopped and talked for ten or fifteen minutes; that she could not hear any words pass between them, but that Harlan McIntosh drew his pistol and jabbed it against appellee's breast; that appellee knocked McIntosh's hand up and the pistol fired; that appellee then pulled his pistol and fired several shots at McIntosh who fell; that there were six or seven shots in all fired; that she walked down the branch with appellee. The witness stated that her husband was gone and she did not know where he was. She was not questioned further. One Terry, who lived about one-half a mile down the branch from Luther Little, was introduced, and he said that a short time after the shooting appellee arrived at his house; that he saw, from the appearance of appellee, there was something wrong and asked him what was the matter and appellee answered that he had shot Harlan McIntosh five time and commenced crying; that his (witness') wife asked him "have...

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