Daniel v. Commonwealth
| Decision Date | 09 March 1923 |
| Parties | Daniel v. Commonwealth. |
| Court | Kentucky Court of Appeals |
Appeal from Clark Circuit Court.
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BENTON & DAVIS for appellant.
CHAS. I. DAWSON, Attorney General, and THOS. B. McGREGOR, Assistant Attorney General, for appellee.
Between 5:30 and 6:00 o'clock on the afternoon of August 12 (Saturday), 1922, Emmett Gilbert was shot near a buggy shed about one hundred yards in front of his dwelling on Cat creek in Powell county. Early the next morning he was carried to a hospital in Winchester, Kentucky, where he died that afternoon or the next day from the effects of the wound. Appellant, C. C. Daniel, was indicted by the grand jury of Clark county charging him with the wilful murder of the deceased, Gilbert, and upon his trial he was convicted of the offense of voluntary manslaughter and punished by the jury with confinement in the penitentiary for the term of twenty-one years.
His motion for a new trial was overruled and he appeals urging through his counsel as grounds for reversal (1), that the verdict is flagrantly against the evidence; (2), error in the admission of evidence introduced by the Commonwealth; (3), newly discovered evidence since the trial, and (4), because the court did not instruct the jury upon the whole law of the case. Other minor matters are referred to in brief, but the above are the only ones which we deem it necessary to consider, and which we will dispose of in the order mentioned.
1. Up the hollow about half a mile from the residence of the deceased, some one was operating a moonshine still and he was on that day working at it. About two o'clock in the afternoon defendant and Lawton Lacey went to the still, evidently, as appears from the record, to get some whiskey. They found there the deceased and Sid Allen. The parties did more or less drinking and after about two hours the deceased and defendant engaged in a difficulty in which they clinched and in the scuffling broke some of the jars of whiskey that were sitting upon the ground. That difficulty grew out of a charge that defendant had made against deceased accusing the latter, at some time prior thereto, of stealing some whiskey, and in it the damn lie was passed, which the defendant and Lacey say was used by deceased against him, but Allen says he does not know who used that epithet. The parties were in their shirt sleeves and if defendant had any pistol at that place no one knew it or saw it, nor did he offer to draw it. They were separated and somewhere about 4:30 o'clock they dispersed, Gilbert leaving first with a jug of whiskey, Allen going in another direction with a jar of the same goods, and Lacey and defendant then left, with the former carrying a sack with a jug or some jars of the same goods in it, but whether defendant had any of the whiskey when he left is not made clear. They went direct to the house of the deceased who was at the time eating his supper, the other members of his family having finished their supper before he arrived. At the still Lacey had a German pistol which he offered to sell to deceased for $30.00, but no trade was consummated. He carried that pistol along when he and defendant went to the home of deceased, and when they arrived there they asked if the latter was at home and being informed that he was defendant requested deceased to shave him, but before that they were asked to eat their supper which they declined and stated that they had already had supper. The shaving was done on the back porch of the house and after it was through defendant asked deceased to go home with him or to go to church with him, but the latter declined on the ground that his mother and step-father had arrived that morning and expected to remain over until the next Sunday afternoon and that he could not go. He was then asked if he would not walk a piece of the way with them (defendant and Lacey) and he consented to do so. The trio started down the road and defendant and Lacey testified that deceased produced some whiskey at or about the buggy shed and the parties indulged. It was not dark and members of the household who testified for the Commonwealth said that the three stopped close to a corner of the buggy shed and they heard some boisterous and loud talking and that two of them were close together, if not clinched, and almost instantly two pistol shots were fired and deceased exclaimed, "You have shot me" or "You have killed me;" that Daniel at about that time ran down the road and that some one whom the witnesses could not tell fired three or four shots after that. Deceased was shot but once and the ball penetrated his left side and came out slightly to the left of his spine. Mrs. Gilbert immediately went to the house of a couple of neighbors, and she and the mother of the deceased and his step-father went to the scene and found him lying in the road with the same German pistol that Lacey had tried to sell him on that afternoon lying by him, or in his hands. The neighbors had gotten there and deceased tried to walk to the house but was too weak from the loss of blood and they carried him to it, but before that the mother of the deceased had gotten the pistol and carried it to the house. No one saw any other weapon except a small pocket knife, which was closed in the pocket of deceased. The Commonwealth offered to prove a statement by deceased which he then and there made, but the court excluded it. We do not know what it was, since there was no avowal.
The defendant testified that when they got to the buggy shed they commenced talking in the usual way, but does not state any subject discussed. Finally the subject of purchasing the pistol was brought up and deceased said that he would like to try it and that if he was pleased with it he would give $30.00 for it, provided Lacey would accept moonshine whiskey as part pay; that he then suggested that it was too dark to try the pistol but told Lacey to let deceased have it and try it at his convenience, which was agreed to. Whereupon, Lacey handed the pistol to defendant and defendant passed it to deceased, at which time defendant suggested that it was time they were going, and he turned to leave, when he heard deceased call his name and in turning to face him the latter again brought up the subject about the stealing of the whiskey and again said that the accusation was a damn lie and that he couldn't live under it; that deceased started to raise the pistol gotten from Lacey and defendant clinched him and grabbed the muzzle of the pistol with both of his hands and that he then released his right hand and drew his pistol which he claimed to be still carrying. About that time he said he remarked to Lacey, "Knock him in the head, if you don't he is going to kill me," but that Lacey made no move and then whereupon defendant started away and deceased fired at him and defendant fired another shot at deceased, and then went to his home. Lacey testified, in substance, the same except he said that deceased said to him, "Knock him in the head; if you don't I will have to kill him." The latter witness remained on the scene until all the shooting was over and left deceased lying in the road with his (witness') pistol which he did not take with him. Witness went to the home of Daniel and got there first but they remained there only a short time and went to the church not far away where they remained about fifteen minutes and then went a distance of about five or six miles where they spent the night, and the next morning they...
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