Hollon v. Com.

• Decision Date: 12 June 1959
• Citation: 325 S.W.2d 340
• Parties: Mort HOLLON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 340

325 S.W.2d 340

Mort HOLLON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

June 12, 1959.

O. J. Cockrell, Jackson, E. B. Rose, Beattyville, Vernon Faulkner, Hazard, for appellant.

Jo M. Ferguson, Atty. Gen., William L. Brooks, Asst. Atty. Gen., for appellee.

EBLEN, Judge.

The appellant was indicted for the wilful murder of Eveadna Campbell Conway. The trial resulted in a conviction for voluntary manslaughter and a sentence of imprisonment for twenty-one years. Appellant admitted the homicide and attempted to justify it as self-defense. On this appeal prejudicial error is claimed to have been committed in the admission of certain evidence and a part of the argument of the Commonwealth's Attorney.

The immediate events leading up to this tragedy began on the afternoon of May 10, 1957. The appellant was to have taken the deceased to Hazard about 1:00 P.M. When he arrived, about 2:00 P.M., at the house occupied by Eveadna, her two children and her mother, he learned that Eveadna had gone to Hazard with a female companion. Appellant drove to Hazard, and, failing to find Eveadna there, returned to the Campbell home about 6:00 P.M. The evidence from this point on is in conflict. According to his testimony he simply asked if Eveadna was home, and, upon being told that she was not there, he drove to his place and did not come back until 11:30 P.M.

The mother, Mrs. Campbell, stated that the appellant came to the Campbell home twice before he finally returned at 9:40 P.M. to find the deceased there. On each of these visits he spoke and acted in an angry manner, once stated that Eveadna was out 'whore-hoppin' around,' and later said it would be too bad for her when he caught up with her. Further the mother testified that when the appellant was told at about 9:40 P.M. the deceased had returned he demanded in vulgar language that Eveadna come out to his car, and began beating her in the face and slapping her with his hands. After much abusive language, he began to beat the deceased about the head with his pistol when she started to accompany him to get some beer, and she freed herself and ran into the house. The appellant followed her and when the mother tried to stop him he cocked his pistol and told her to get out of the way or he would kill her. The appellant then shot and killed Eveadna.

On the other hand, appellant contended that he fired his pistol in his own defense, basing his claim on the discovery of another pistol underneath the deceased's body, which pistol, he says, was first fired at him, the bullet lodging in his shoulder. Then he is supposed to have returned fire, killing Eveadna.

The first error urged by appellant is the admission of evidence tending to show there had existed for some four years an illicit and adulterous relationship between deceased and appellant, and that there had been an illegitimate child born of this relationship. It is urged that such evidence was not relevant in determining guilt or innocence of the offense charged, but was instroduced to inflame and prejudice the jury.

That the relationship between the defendant and the deceased was adulterous; that it existed for some four years and continued to the time of the homicide; and that it might arouse a jealous rage in the defendant, as evidenced by a stated belief that the deceased was seeking the companionship of other men, and the uttering of threats against her, were relevant factors for the consideration of the jury in deciding whether the crime of wilful murder, or some lesser offense, or none, had been committed. A long line of decisions sustains the competence of this evidence. We deem it unnecessary to cite more than Johnson v. Commonwealth, 217 Ky. 565, 290 S.W. 325; Weber v. Commonwealth, 303 Ky. 56, 196 S.W.2d 465; Taylor v. Commonwealth, 266 Ky. 325, 98 S.W.2d 928; Manz v. Commonwealth, Ky., 257 S.W.2d 581.

Appellant further argues that certain testimony of the sheriff and coroner concerning hair found near the scene of the crime was prejudcial and not corrected by an admonition to the jury....