Herron v. Commonwealth

• Decision Date: 25 September 1901
• Citation: 64 S.W. 432
• Parties: HERRON v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

64 S.W. 432

HERRON v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

September 25, 1901

Appeal from circuit court, Webster county.

"Not to be officially reported."

Noah Herron was convicted of the offense of murder, and he appeals. Affirmed.

Lockett & Lockett and Bourland & Henson, for appellant.

Clem J Whittemore and Robt. J. Breckinridge, for the Commonwealth.

PAYNTER C.J.

The appellant was indicted for murder, found guilty, and sentenced to the penitentiary for life. A reversal is sought upon the grounds: First, that the commonwealth's attorney was guilty of improper conduct, prejudicial to the substantial rights of the appellant, in his argument before the jury; second, the rejection of competent testimony. The evidence showed that the deceased died from the effects of pistol shot wounds. One ball entered between the hair above the right ear and eye, coming out in the left eye, and four were fired into his stomach; and the wounds were so close together that a man's hand would cover them. They ranged up, and lodged in the back about four or five inches above the place where they entered. The appellant claimed that he shot the deceased first in the face, and in quick succession fired the other shots; that the deceased was on an elevation above him when the shots were fired. In arguing the case to the jury, the commonwealth's attorney had a man stand before it, took an empty pistol, and tried to illustrate to it, from the testimony offered by the commonwealth, that the shots could not have been fired in the manner claimed by the appellant. In doing so he placed the pistol at the head of the subject there to aid in the illustration, and also pointed the pistol at him to indicate how the balls might have ranged up had they been fired when the deceased was lying on the ground. The illustration made was from what he claimed to be the evidence in the case, and he certainly had the right to do so. It was not in the nature of introduction of testimony, but an effort to make an application of that which had been introduced. The killing took place about dusk. The appellant left the deceased where he was shot, and proceeded to a neighbor's house, and told him and others he had shot him, and where his body would be found; and also detailed the circumstances under which the shooting took place, and from his statement it was done in self-defense. Upon the trial of the case the commonwealth introduced...