Davis v. Commonwealth

• Decision Date: 10 October 1924
• Citation: 204 Ky. 809
• Court: Kentucky Court of Appeals
• Parties: Davis v. Commonwealth.

Page 809

204 Ky. 809

Davis v. Commonwealth.

Court of Appeals of Kentucky.

Decided October 10, 1924.

Appeal from Martin Circuit Court.

J. B. CLARK for appellant.

FRANK E. DAUGHERTY, Attorney General, and MOORMAN DITTO, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE THOMAS — Reversing.

The appellant, Roy Davis, was indicted by the grand jury of Martin county, in which he was accused of murdering Irene Starr, a little girl between four and five years of age. Upon his trial he was convicted of voluntary manslaughter and sentenced to confinement in the penitentiary for a term of two years. His motion for a new trial was overruled and he appeals from the judgment pronounced on the verdict.

A number of supposed errors are relied on in the motion for a new trial, but we find none of them possessing merit except those herein referred to.

The undisputed facts are, that appellant was nineteen years of age in the latter part of December, 1922, when the little Starr girl was shot at about six o'clock p. m. in a room of the residence of appellant's stepfather, with whom he was living. Some time prior to that he had purchased or traded for an automatic pistol, and he concluded to take it to pieces and oil it, and accordingly he took out the magazine and other parts in order to do the oiling. He says that he intended to and thought he had also taken out the cartridge that in all probability was in the barrel. The deceased lived with her father and mother some one hundred yards from the residence of appellant's stepfather, and the latter also had some small children whom the deceased frequently visited and they all played together in and around the dwelling house, and on the fatal evening they were occasionally passing through the house, including the room wherein appellant was oiling his pistol. After the oiling the defendant, as he states and which is disputed by no one, was engaged in assembling the parts of the pistol when he says it accidentally fired and the bullet struck the little girl, inflicting a wound from which she died about three o'clock the next morning. Immediately, appellant's mother, who was in the kitchen adjoining the room where the accident happened, ran in and picked up the wounded girl and started with her to her father's house, and appellant went to the commissary store to notify her father, and the two went to the Starr home, where the deceased had been carried and was lying on the bed. Others were in the room at the time, and the father, in giving his testimony, was asked and answered: "While you were present, did she say in your presence and in the presence of the defendant, anything about who shot her? A. Yes, she looked over at him and says, `papa,' said `Roy, you shot me,' and I said, `He didn't aim to, honey,' and she said, `Yes, he did, papa,'" Jarred Waller, who was present at the time, was asked and answered: "Were you there when the little girl told who shot her? A. Yes, I was there. Q. And Roy Davis was there? A. Yes, I think Roy was there. Q. Tell the jury what she said? A. Well, she said Roy Davis shot her. Q. What did Roy say? A. Her father said, `He didn't aim to,' and she said, `Yes, he did.' Q. What did Roy say? A. I don't think Roy said a word." Objections and exceptions were made and reserved to the testimony of both of those witnesses, who also stated that what we have inserted was all that was said on that occasion, and that evidence was all that was introduced to sustain a manslaughter conviction.

On the other hand, defendant testified that he did not know that the little girl was in the room at the time the pistol fired and, hence, that he did not point the pistol at her, nor did he at any time intend to pull the trigger or to do any other act that would cause it to fire, and that its shooting on the occasion was wholly unintentional and purely accidental. It is shown that he was considerably grieved and that he had always been kind and considerate toward the deceased and that he harbored no feeling of any kind against her or any member of her family. Furthermore, it appears that he was a hard-working boy and bore an excellent reputation in the community. He immediately raised the alarm and went to and did notify the father, and the entire record is completely barren of any motive for any intentional shooting. It is possible for such a shooting to occur in such a grossly reckless manner as to render the responsible party guilty of voluntary manslaughter, as is shown in the opinions in the cases of Davis v. Commonwealth, 193 Ky. 597; Speaks v. Same, 149 Ky. 393; Peay v. Same, 181 Ky. 396, and a great many other cases from this court found in note 19, subdivision (e), 29 C. J. 1156; and, if it had been shown in this case, or if there had been evidence sufficient to authorize the jury to so find, that defendant without satisfying himself that there was no cartridge left in the barrel of the pistol and under those circumstances he intentionally pointed the pistol at the deceased and snapped it, then the killing would necessarily have been voluntary manslaughter under the opinions referred to, although he had no intention to fire...