Cook v. Commonwealth

• Decision Date: 24 February 1903
• Citation: 72 S.W. 283
• Parties: COOK v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

72 S.W. 283

COOK v. COMMONWEALTH.

Court of Appeals of Kentucky.

February 24, 1903

Appeal from circuit court, Daviess county.

"Not to be officially reported."

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

Sweeney Ellis & Sweeney, for appellant.

Clifton J. Pratt and M. R. Todd, for the Commonwealth.

PAYNTER J.

The appellant seeks a reversal on two grounds: (1) Newly discovered evidence; (2) errors in instructions. It was on the motion for a new trial that it was made to appear that evidence had been discovered after the verdict of the jury. Section 281, Cr. Code Prac., provides that "the decision of the court upon challenges to the panel and for cause upon motion to set aside an indictment and upon motions for a new trial shall not be subject to exception." The action of the court in refusing a new trial cannot be reviewed by this court. Nichols v Commonwealth, 11 Bush, 575; Lewis v Commonwealth, 93 Ky. 238, 19 S.W. 664.

The defendant was indicted for murder, and found guilty of manslaughter. Instruction No. 2 was on voluntary manslaughter, in which the court told the jury that if they believed from the evidence, beyond a reasonable doubt, that the killing was not done in his necessary or apparently necessary self-defense, but was done in sudden heat or passion or sudden affray, or upon such provocation as was reasonably calculated to excite ungovernable passion, they should find him guilty of voluntary manslaughter. It is insisted that this is in error, because the phrase underscored did not define any standard by which the jury was to measure the question of provocation. It is true the language gives no definition of what kind of provocation is reasonably calculated to excite ungovernable passion so as to reduce the killing to manslaughter. In Payne v Commonwealth, 1 Metc. 374, the court told the jury, if the killing was done upon legal provocation, and without malice, in sudden heat and passion, and not in self-defense, they were to find the accused guilty of manslaughter. It is urged that the language in question is equivalent to saying "legal provocation." We do not think so. This court, in Lewis v. Commonwealth, said: "It would have been better to have told the jury that the provocation must be such as is ordinarily calculated to excite the passions beyond control." In the instruction under consideration the court used the words "reasonably calculated,"...