Delk v. Commonwealth
| Decision Date | 19 February 1932 |
| Parties | DELK v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Rehearing Denied April 22, 1932.
Appeal from Circuit Court, Pulaski County.
Chester Delk was convicted of malicious shooting, and he appeals.
Affirmed.
H. C Kennedy and William M. Catron, both of Somerset, for appellant.
Bailey P. Wootton, Atty. Gen., and Francis M. Burke, Asst. Atty Gen., for the Commonwealth.
Roscoe Tartar was shot by Chester Delk on June 24, 1930. Tartar was taken to a hospital and remained there until July 5, when he was discharged. He died on August 3, 1930. On October 9 1930, an indictment was returned against Delk, charging him with maliciously and feloniously shooting Tartar. On October 25, 1930, the case was tried, but the jury failed to agree. On February 9, 1931, the court, on the motion of the commonwealth attorney, and over the objections of the defendant, dismissed the indictment and referred the case to the grand jury. On February 10, 1931, the grand jury returned an indictment against Delk for the murder of Tartar. The case came on for trial on February 17, 1931. The jury returned a verdict against Delk, finding him guilty of malicious shooting and fixing his punishment at two years in the state prison. The court overruled his motion for a new trial and entered judgment upon the verdict. He appeals.
The parties lived about a half mile apart, near Caintown, in Pulaski county. Delk was operating a reaper on his place. About the middle of the afternoon he needed some bolts, necessary for it, and he went up to Caintown to get them. Tartar had been to Somerset that day in his car and as he came back he stopped at Caintown shortly before Delk reached there. Tartar was drinking and spoke of shooting up the town when he got there. He went into the store of T. A. Hail, leaving his car in front of the store and bought a whet rock several inches long with a handle to it. He took it by the handle and went out to the door and was talking to Everett Eads saying: "This would make a damn good billy." He had Eads by the hand as Delk approached. Delk, without saying a word, passed into the store. Tartar then said, "He won't talk but damn him I will make him talk." He then went out to the car, put the whet rock in the car and put his pistol, which he had left in the car, in his pocket. He returned to the store and went on to the water bucket, which was on the opposite side of the room from where Delk was then sitting on the counter. He took hold of the dipper and rattled it around a few times in the bucket. Delk at this point got down off the counter and left the store. He then went to a filling station and from there behind the store, which was about 75 feet long. In the meantime, Tartar went to the front door and looked in the direction in which he had seen Delk go. He then went back in the store and after a few minutes came out to the door again. Delk, at this time, was coming up on the right-hand side of the store, and, when he reached the front, the shooting began. According to the proof for the commonwealth, Delk had his pistol in his hands and fired two shots before Tartar fired any. According to the proof for the defendant, Tartar said, "Damn you I haven't turned anybody up," and then fired the first two shots at Delk.
Tartar's pistol was large and Delk's pistol was smaller. Delk testified that he saw Tartar's pistol in his pocket when he came in the store, and this was the reason he left. The proof showed that Tartar thought that Delk had "turned him up" for moonshining. Delk proved numerous threats that Tartar had made against him, and the commonwealth proved threats that Delk had made against Tartar. They were on bad terms and had been for some months. Tartar was a violent dangerous man when drinking. Delk was sober.
It is earnestly insisted for the appellant that the verdict of the jury is palpably against the evidence and should be set aside on the ground that Delk acted in self-defense. But this turned simply on the credibility of the witnesses. If the testimony for the commonwealth was true, Delk not only fired the first two shots, but he brought on the difficulty by leaving a place of safety and going up to the front of the store when he had reason to know that Tartar was there, and from the circumstances the jury might infer that he came back for the purpose of having the difficulty out then between him and Tartar. While there is much force in the argument for the defendant, the court cannot say that the verdict is palpably against the evidence.
Appellant complains that the circuit court sustained the motion of the commonwealth attorney to dismiss the indictment for malicious shooting and refer the case to the grand jury. But this is a matter resting in the discretion of the court, and a reversal will not be granted therefor, unless discretion is abused. Clearly there was no abuse of discretion here. It was a question for the jury under the evidence, whether Tartar's death was by reason of the wound he received or by reason of the disease he then suffered from.
The appellant earnestly insists that the court erred in the admission of evidence. Judge Kennedy was one of the attorneys for the defendant, and, on the re-examination of T. A. Hail by the commonwealth attorney, after his cross-examination by Judge Kennedy, this occurred: " "
The court properly sustained the defendant's objection to the question, for it was simply argumentative; but the court is unable to see that defendant's substantial rights were prejudiced by the asking of the question, and it is expressly provided by statute that no case shall be reversed unless for an error prejudicial to the substantial rights of the defendant.
On the re-examination of Everett Eads by Judge Bethurum, who was one of the attorneys in the prosecution, this occurred:
There was no error in this. The witness had positively stated that he saw Delk raise his pistol and fire the first two shots, and he could properly state that he did not hear any other shots before this.
Harry Allen stated that Tartar had Everett Eads by the right arm and was saying he was going to knock him in the head with a rock, and then this followed:
There was no error in this. There was no trouble between Tartar and Eads. All the evidence showed that what took place between Tartar and Eads was simply due to the fact that Tartar was drinking.
When Grace Allen was on the stand she was asked what her feelings were toward Chester Delk and she said, "We are friendly." She was then asked if she was not mad at Chester Delk because she had heard that he had threatened to turn up some of her folks for being in the liquor business. The commonwealth attorney objected to the question and the court sustained the objection. But further along in her testimony she stated that she testified on the examining trial and then this followed:
The defendant thus obtained, in substance, the fact that he wished to prove by the previous question, and clearly his substantial rights were not prejudiced.
On the examination of Carl Brashear this occurred:
"Q. You stated, I believe, that you could see Delk and could not see Tartar? A. Yes, sir.
Q. Isn't that the reason you say that you think Delk fired first? A. I could see him, yes.
Q. You don't know who fired first do you? A. Yes, I think Delk did.
Q. Don't you make that statement because you could see him and...
To continue reading
Request your trial