Duke v. Commonwealth

• Decision Date: 25 March 1921
• Citation: 191 Ky. 138,229 S.W. 122
• Parties: DUKE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

229 S.W. 122

191 Ky. 138

DUKE v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 25, 1921

Appeal from Circuit Court, Christian County.

Stanley Duke was convicted of voluntary manslaughter, and appeals. Affirmed.

James Breathitt and Breathitt & Breathitt, all of Hopkinsville, for appellant.

C. I Dawson, Atty. Gen., Thos. B. McGregor, Asst. Atty. Gen., and Trimble & Bell, of Hopkinsville, for the Commonwealth.

HURT C.J.

The appellant, Stanley Duke, upon an indictment accusing him of the crime of murder, by shooting and killing Alex Wells with a pistol, was found guilty of voluntary manslaughter, and his punishment fixed at imprisonment for the period of 15 years by the verdict of the jury and a judgment was rendered accordingly. His motion for a new trial being overruled, he has appealed.

The grounds upon which he assails the fairness of his trial are that:

(1) The court erred to the prejudice of his substantial rights in the admission of testimony which was incompetent as evidence against him.

(2) The court erred in excluding competent evidence in his behalf.

(3) The court erred in the instructions to the jury.

The above-stated grounds for reversal will be considered in their order, but before doing so it will be necessary to give as condensed a statement as practical of the salient facts established or attempted to be established by the evidence and the contentions of the parties with reference thereto in order to make the discussion of the grounds relied upon for the reversal of the judgment intelligible.

The appellant was a young man 33 years of age, a farmer, and a manufacturer of illicit distilled spirits, and who also went around in his community habitually armed, the weapon with which he committed the homicide being an automatic pistol which could be discharged in rapid succession nine times before recharging. This weapon, however, he claims to have habitually carried upon his person to protect himself from apprehended violence at the hands of his victim, Wells, who resided three or four miles away. The victim, Wells, bore an unsavory reputation as being a dangerous character when aroused or drinking, and who also went about habitually armed, and when slain had a revolver concealed upon his person. He had served a term in the penitentiary at Eddyville for a felony. At some time or other he had been shot in the leg, which stiffened his ankle and made him slightly lame in walking, and the appellant had also suffered a gunshot wound which he claims had lessened his ability to do manual labor. The accused and Wells were enemies of several years' standing, but the record does not disclose the original cause of their mutual animosity. There was evidence to the effect that each of them had threatened the other with death. About three years before the homicide Wells threatened that he would kill the accused if he (Wells) should return from the penitentiary, to which he was expecting to be and was sentenced within a few days thereafter, and after his return threatened that he would kill the accused if he should "cross his path," though he expressed his willingness to be civil with him. The accused threatened to kill Wells if he (Wells) should ever discover him (accused) in the making of whisky. The threats of Wells were communicated to the accused, one of which was communicated to him on the morning of the day of the homicide. Other language made use of by each of them proves their mutual hatred, and especially expressions of the accused made just after he had killed Wells, which indicate his hatred of him and his gratification at having killed him. There was other evidence which tended to prove that on two occasions shortly before the homicide they met upon terms of apparent friendliness, once, near the dwelling of Wells, when the accused, who was passing, called to Wells and they went away together for 15 minutes and on another occasion when Wells visited the distillery of the accused, where the accused and Roy Overton were, and remained two or three hours, and accused presented him with three quarts of "singlings." The accused resided near his father John Duke's grocery or "soft drink stand", and on the day the homicide occurred a crowd had congregated thereabouts, and about 12 o'clock in the day the accused and Roy Overton were seen coming from the home of the accused, in the direction of the grocery, and there was testimony to the effect that the accused inquired where Wells was, and, being informed that he had gone in the direction of the "hollow," which was a rendezvous for gambling, they passed on that direction, and within about 30 minutes the shooting was heard which caused the death of Wells in the "hollow." The accused denies that he inquired or received any information about Wells, and did not go directly to the "hollow," but stopped at the grocery for an hour and a half, but it is significant that no one corroborates him in this statement except Roy Overton, although he mentions the names of persons with whom he conversed at the grocery. Roy Overton claims that he passed on by the grocery and was walking aimlessly about, and heard talking in the "hollow," and, proceeding to it, found Wells and Robert Slaughter there. Overton and Wells engaged in a game of cards, while Slaughter lay down and fell asleep. Elmer Overton was also walking aimlessly about, and discovered the group and sat down near by and watched the game. Roy and Elmer Overton were uncles of the accused. The accused claims that he left the grocery in search of his horses for the purpose of feeding them, and while searching for them heard voices in the "hollow" and drew near to them, and as he came around a bluff within eight or ten steps of the parties discovered the presence of Wells for the first time, when Wells immediately started to arise, placing his hand in the direction of his hip, and said, "G_____d d_____n you, I am going to get you." The accused instantly drew his automatic pistol and discharged it nine times against Wells, who fell down and died, and Slaughter and the Overtons ran away at the first shot. The Overtons corroborate the accused as to what took place at the time, while Slaughter deposed that, when he was awakened by the shooting, Wells was upon his knees and the accused was shooting him. All nine of the bullets took effect. Five entered Well's face, three nearly together upon one side of his face, and two upon the other, one entered his forehead, in the edge of his hair, another passed through a finger of his hand, another wounded his thigh, and the remaining one glanced his right shoulder. There was testimony to the effect that shortly after the homicide the accused said to one that he approached the game and Wells invited him to join in it, and he replied that he would not play with a d_____n son of a b_____h, and to another he said that he walked up to the parties in the game, and then went away, and then returned to it again. The body of Wells was examined, and a large pistol was found concealed upon it, partly incased in a scabbard, which was attached to a belt, which encircled his waist, and was worn under a pair of overalls.

The theory of the prosecution is that the accused, prompted by hatred or fear, or probably both, sought out the deceased provoked a quarrel with him, and shot him to death to gratify his malice toward him, while the accused claims that he came upon the deceased suddenly and without knowledge of his being at the place, when deceased with a threat to kill him started to do so, when he, from his knowledge of the animosity of deceased toward him, his previous threats to do him violence, his known character for violence, and his apparent purpose to carry the threats into execution, believed in good faith that he was in imminent danger of death or serious harm at the hands of deceased, and had reasonable ground for such belief, and killed him to protect his own life. It is clear that, if the theory of the prosecution is founded in truth, the accused was properly convicted; for, although one has been menaced and threatened, he cannot hunt up his adversary and kill him and be guiltless. Parsons v. Com., 78 Ky. 102; Martin v. Com., 93 Ky. 189, 19 S.W. 580, 14 Ky. Law Rep. 95. It is also clear that, if the theory of the defense is the truth of the matter, the accused is guiltless on the ground of apparent necessity. This was the issue submitted...