Embry v. Commonwealth

• Decision Date: 21 November 1889
• Parties: EMBRY v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

12 S.W. 383

EMBRY v. COMMONWEALTH.

Court of Appeals of Kentucky.

November 21, 1889

Appeal from circuit court, Lee county.

"Not to be officially reported."

Edward W. Hines, M. A. Edwards, and T. B. Blakey, for appellant.

P. W Hardin, Atty. Gen., for the Commonwealth.

PRYOR J.

The negro William Embry was indicted in the Lee circuit court for the murder of Daniel Crouch, and sentenced to be hung. It seems from the evidence that the accused and the deceased together with others, were engaged in loading a wagon with flour, and, the head of one of the barrels falling out, the deceased and the accused, in a playful and humorous manner began to throw the flour on each other. The accused gathered up a handful of the substance and threw it on the deceased when the latter said, "Don't throw no more of that flour on me, Will Embry," and Embry responded by saying "Don't tell me not to do anything," and cast another handful in Crouch's face. Crouch then threw a handful into Embry's face, when Embry stepped to the water's edge, (they being at the river,) washed the flour from his face, and, returning, drew a pistol from his pocket and pointed it at Crouch, with his finger on the trigger, saying to Crouch, "You won't tell me to do nothing;" Crouch responding, "Take that pistol out of my face." The accused then turned the pistol towards the ground, and, as some of the witnesses say, began to work the cylinder; and then, raising his arm up, with pistol in hand, "it went off," (to use the language of all the witnesses;) the ball passing through the head of the deceased, killing him instantly. The deceased was in a stooping posture, and as he raised up the pistol went off. The accused testified on the trial, and his statement differs but little, if any, from the statements of the witnesses for the state; the entire proof showing that both of the parties were in good humor. The accused swore that the shooting was accidental; that it was an old pistol, and he had no idea it would fire,--and, from his statement, was much disturbed at the taking the life of his fellow laborer. The accused, according to the testimony, was reckless in the use of the pistol; but, the facts conducing to show that the firing was unintentional, the severity of the punishment requires a careful consideration of the case. The accused was indicted at the September term of the court, and tried during the same term. He applied to the clerk...