Fueston v. Commonwealth

• Decision Date: 07 February 1891
• Citation: 15 S.W. 177,91 Ky. 230
• Parties: FUESTON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

15 S.W. 177

91 Ky. 230

FUESTON v. COMMONWEALTH.

Court of Appeals of Kentucky.

February 7, 1891

Appeal from circuit court, Laurel county.

Scott &amp Violett, Jas. Andrew Scott, and Eversole & Brown, for appellant.

P. W Hardin, for the Commonwealth.

HOLT C.J.

In a desperate conflict between several of the Fuestons and Partons upon the one side, and several of the Lawsons and Roses upon the other, John and Ewell Lawson and James Fueston were killed, and several others wounded. The weapons used were pistols, and many shots were exchanged. The testimony as might well be expected, is very conflicting. The appellant, Beth Fueston, was jointly indicted for murder with seven others, for the killing of John Lawson, the deceased having also taken part in the difficulty. James Fueston, who was killed, was a son of the appellant. The latter has been convicted of manslaughter, and now appeals from a sentence of 21 years in the penitentiary. As the case must be remanded for another trial, and as others may yet be tried for having taken part in the tragedy, we shall refrain from a discussion of the evidence save so far as is necessary to a due consideration of the questions raised by this appeal. The difficulty occurred at a church which appellant was in the habit of attending, and when religious services were being held. The appellant came there with his wife and daughter and also some neighbors, who, however, do not appear to have been engaged in the trouble. It was in hot weather, and he was in his shirt sleeves. He then apparently had no weapon. The testimony is conflicting as to whether he at any time during the difficulty had a pistol. Some witnesses say he did, and some that he did not. Assuming however that he did, yet there is no positive evidence that he shot the deceased, John Lawson. After a careful examination of the record, we fail to find that any witness says so. The deceased was shot twice. Several witnesses swear positively who fired one of the shots, but who fired the other does not appear by any positive evidence. The son of the appellant appears according to the latter's testimony, to have been first killed, and in his immediate presence. There is testimony showing that, at the commencement of the shooting, the appellant grabbed the deceased, and in the scuffle they went over a bank; and one witness says that, after they did so, he saw smoke, as if from a pistol, at the point where they then were, and this statement is possibly confirmed by another witness. But what may well be termed "the battle" had then become general, the parties were then scattered about, and the firing was going on upon all sides. The deceased himself had a pistol, which he had been firing at some one. He was seen at another point after the scuffle with the appellant, and then it was that several witnesses say he was shot at least once. As to these matters there is perhaps some...