Gurley v. Commonwealth

• Decision Date: 11 February 1927
• Citation: 218 Ky. 236
• Parties: Gurley v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

218 Ky. 236

Gurley v. Commonwealth.

Court of Appeals of Kentucky.

Decided February 11, 1927.

1. Criminal Law — Failure of Instruction on Voluntary Manslaughter to Define "Affray" Held Harmless, in View of Conviction. — In prosecution for murder, failure to define word "affray" in charging

on voluntary manslaughter held harmless, in view of conviction of voluntary manslaughter.

2. Homicide — Failure to Instruct on Self-Defense Held Not Error Under Evidence. — In homicide prosecution, in which the overwhelming weight of the evidence tended to show that defendant deliberately shot deceased without provocation, failure to instruct on self-defense held not error.

Appeal from Harlan Circuit Court.

CHARLES B. SPICER for appellant.

FRANK E. DAUGHERTY, Attorney General, and G.D. LITSEY, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE REES.

Affirming.

The appellant, Virgil Gurley, was indicted in the Harlan circuit court charged with murder, and on his trial was found guilty of voluntary manslaughter and his punishment fixed at confinement in the state penitentiary for 18 years.

The facts, as shown by the proof for the commonwealth, briefly stated, are these: The deceased, Frank Monhollen, was in a pool room in which were congregated 50 to 75 persons. He was standing near a stove about the center of the room engaged in conversation with George Johnson. Appellant came into the room with his hand on a pistol in his right overcoat pocket. He walked to where the deceased was standing when the following conversation, as detailed by Johnson, occurred between them:

"Well, me and Monhollen was standing there in the pool room at Black Mountain and Virgil Gurley walked in. We was standing there. He walked to my left side and Frank Monhollen says: `What you got your hand?' Virgil says: `I've got it on my gat.' About that time Frank pulled his coat back and says `That beats me, I haven't got none.' Virgil says: `I don't want you to have any.' Then Frank said to Virgil: `You may have to pay for that.' Virgil says `You are a fool,' and about that time the shooting commenced. Monhollen fell."

Johnson further testified that, immediately after firing at the deceased, appellant wheeled and began firing at Corb Farley, who was standing about 15 feet away. He fired six shots and Corb Farley was wounded twice and his brother, Bill Farley, three times. Johnson was corroborated by a number of witnesses who were standing near when the shooting began.

Appellant admitted that the conversation occurred as detailed by Johnson except he denied that he called the deceased a fool. He denied shooting at deceased, but claimed at the conclusion of the conversation with him, he looked around and saw Corb Farley in the act of drawing his gun; that he believed he was in danger of being killed or suffering great bodily harm at the hands of Farley and he drew his gun and began firing at Farley. He claims that he did not shoot at the deceased and if he did shoot him he did so accidentally while shooting at Farley in what he believed to be his necessary self-defense. It seems that Corb Farley had killed a brother of appellant about a year previous to this occurrence, and appellant claims that Farley had made threats against his life and that these threats had been communicated to him. He also claimed that he and the deceased were good friends.

The commonwealth introduced two witnesses who...