Hendrickson v. Commonwealth

• Decision Date: 26 February 1887
• Citation: 85 Ky. 281,3 S.W. 166
• Parties: HENDRICKSON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

3 S.W. 166

85 Ky. 281

HENDRICKSON v. COMMONWEALTH.

Court of Appeals of Kentucky.

February 26, 1887

Appeal from circuit court, Laurel county.

R L. Ewell, for appellant.

P W. Hardin, for appellee.

LEWIS J.

Under an indictment for the murder of his wife, appellant was convicted of manslaughter. From the testimony of a daughter of the deceased, and step-daughter of appellant, the only person present at the time, it appears that a difficulty took place at their residence at night, after they had retired to bed, in the winter of 1885-86, and, in the language of the witness, occurred as follows: "The sow rooted open the door of the cabin, and they, [her mother and father,] fell out over driving her out; and he choked, beat, scratched, and struck her, and she knocked him down with the iron shovel and got on him, choked him, and asked him how he felt; and he started towards his breeches, and said,'If I had my knife, I'd cut your doggoned throat,' and that she ran out at the door, and did not return that night; that he shut the door after her, and propped it with a stick of wood and went to bed." She further stated that next morning she went to look for her mother, and found her lying in the snow dead; and that when she started appellant told her to take her mother's shoes and stockings.

The statement to the jury made by appellant himself is that the deceased commenced the fight, getting him down on the floor, when he choked and bit her, and she then knocked him down with an iron shovel, and got on and choked him, and then jumped up, and ran out the door, saying she would have him arrested and put in jail. He, however, admits he said to her that if he had his knife he would cut her, and started for his breeches.

From the testimony of a witness, it appears that the place where the deceased lay was within about 100 yards of his house, and about half a mile of her residence; and that in going to the place where she was found she had passed by the gate of another person, and within 20 feet of his house, which was 250 yards nearer her own residence than was the place where she died. When found, she was lying on her face dead, and badly frozen, the weather being extremely cold, and where she lay were signs of stirring in the snow, which was about 18 inches deep. When she left her residence she was barefooted, and had on very little clothing, and along the route she took, which led through briars, there were small quantities of blood, and fragments of clothing that had been torn off by the briars, and at another place she had struck her ankle against the end of a log, and it bled freely. The witnesses testify that there were scratches on each side of her neck, and finger prints on her throat, and prints of teeth on her left arm and back of her hands, and her legs from knees down lacerated by the briars. According to the testimony of a physician, she was eight months and one week gone in pregnancy, but she had no wound, bruise or other mark of violence that could have produced death. He also testifies that appellant was badly crippled, and paralyzed in an arm; and that on the day of his examining trial he had a considerable cut about his face, and a bad-looking one about the eye. There is evidence that the deceased was a high-tempered woman, hard to get along with. She told a witness of fighting and whipping her husband, who was a cripple, and had but one arm he could use, though the daughter testifies that in their fights he whipped her. It further appears that she had on other occasions run off and left her husband, and at one time she came to the house of a witness, and staid all night, leaving a young baby with her husband, saying to the witness that she had got mad and run off.

The lower court refused to instruct the jury, at the instance of appellant's counsel, that, before...