Hoskins v. Commonwealth

• Decision Date: 18 March 1913
• Citation: 154 S.W. 919,152 Ky. 805
• Parties: HOSKINS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

154 S.W. 919

152 Ky. 805

HOSKINS v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 18, 1913

Appeal from Circuit Court, Lee County.

Garfield Hoskins was convicted of willful murder, and he appeals. Affirmed.

G. W Gourley, Sutton & Hurst, and S. P. Stamper, all of Beattyville, for appellant.

James Garnett, Atty. Gen., and M. M. Logan, Asst. Atty. Gen., for the Commonwealth.

HOBSON C.J.

At the June Term, 1910, of the Lee circuit court, Garfield Hoskins was indicted for the crime of willful murder committed by shooting and killing Harrison Hargis. Upon the first three trials of the case the jury failed to agree. Upon the fourth trial he was found guilty of manslaughter, and his punishment fixed at confinement in the penitentiary for life. He appealed to this court, and on the appeal the judgment was reversed for a defect in the indictment and in the self-defense instruction. See Hoskins v Commonwealth, 145 Ky. 580, 140 S.W. 1040. On the return of the case to the circuit court the indictment was set aside, and a new indictment found. Thereafter, on the calling of the case for trial, the defendant entered a plea of not guilty and of former jeopardy. The court sustained a demurrer to the plea of former jeopardy, and the defendant excepted. Thereupon, the case coming on for trial on the plea of not guilty, the jury returned a verdict finding him guilty as charged, and fixing his punishment at confinement in the penitentiary for life. The defendant appeals from the judgment entered on the verdict.

The facts of the case are in substance these: Bruce Sewell, Wiley Sewell, and Joe Godfrey were sitting on a pile of sawlogs. Hoskins came by on his way to dinner. They called to him and he sat down with them. Wiley Sewell had a half pint of whisky. They sent up town and got some coca-cola, and all drank the whisky and coca-cola. While they were still sitting there, Harrison Hargis came up, and called to the two Sewells to come to him. They went to him, and while they were talking with him Godfrey and Hoskins joined them. The parties were all negroes. Hargis and Wiley Sewell began a friendly scuffle, in which Sewell threw Hargis. When Hargis got up, he felt in his pockets, and said he had lost $1.05. All of the parties present except Hoskins turned their pockets inside out to convince Hargis that they did not have his money. Hargis intimated that Hoskins had his money, and appellant said to him that he did not have any money. Godfrey in looking around found the money on the ground where it had fallen out of Hargis' pocket in the scuffle. They all then went to the sawlogs, and sat down. Hargis then asked Hoskins why he did not turn his pockets out like the other boys, and he answered that Hargis knew he did not have his money; that he did not even have the money to pay his part of the coca-cola they had bought. Hargis then said to Godfrey "Give that damned negro a dollar." Godfrey offered to do so, but Hoskins refused it. Godfrey and Hoskins then started towards Hoskins home. When they had gone a short distance, Hoskins concluded that he wanted to make friends with Hargis, and to that end he called to him to come to him. Hargis arose and started towards him, but, when he had advanced only a few steps, Hoskins said to him, "Stop, Harrison, I know you." Hargis replied, "Negro, if you fool with me, I will make you leave this creek." Immediately Hoskins drew his pistol, and fired at Hargis. Hargis turned, and began running, saying, "Lord, don't let him kill me." As he fled with his back to appellant, he was shot in the back and killed. The proof for the commonwealth is to the effect that Hargis was doing nothing when the first shot was fired, and that his hands were by his sides empty, and that he ran some 15 steps after the first shot was fired before the second shot was fired. The appellant testified that when he called to Hargis, and Hargis started towards him, that Hargis had his hand in his pocket, and there was proof at the inquest over the body of Hargis that a barlow knife was found where he fell. The proof for the defendant also showed that the deceased had made threats that he intended to kill him, and that these threats had been communicated to him, that the deceased was a dangerous, quarrelsome, and violent man when under the influence of liquor, as he was on that day, and that the knife, which was found open, was his knife.

It is insisted in these facts that the verdict is palpably against the evidence, but we cannot say that it is. The appellant himself called the deceased off the log. He called him it is true for a friendly purpose, and it would seem that all he had to do was to tell the deceased why he had called him. The deceased was manifesting no hostility to him or intention to hurt him before he called him, and, in addition to this, he shot the deceased in the back when he was fleeing for his life, according to all the evidence, and when he had no reasonable grounds to believe he was in danger at the hands of the deceased.

It is insisted that the court erred in sustaining the demurrer to the plea of former jeopardy, but there was nothing in the record to sustain this plea. The plea was based upon what had occurred in the case. When the juries failed to agree, the case stood just as though these trials had not been had, and, when the defendant was convicted and secured a new trial on appeal to this court, the case stood, when the new trial was granted, as though there had been no previous trial of it. Section 270 of the Criminal Code provides: "The granting of a new trial places the parties in the same position as if no trial had been had. All the testimony must be produced anew, and the former verdict cannot be used or referred to in evidence or in argument." We have in a number of cases upheld this provision of the statute. The state in granting the right of appeal, or the right of new trial, may hedge the right about with such restrictions as it may see fit to impose, and so we have held that, where a new trial is granted to one who has been convicted of manslaughter under an indictment for murder, he is in the same position as if no trial had been had ( Commonwealth v. Arnold, 83 Ky. 1, 4 Am. St. Rep. 114); and, if a new trial is granted, the first indictment may be dismissed and a new indictment found, the trial under the second indictment being had as though there had been no previous trial of the case (Fain v. Commonwealth, 109 Ky. 545, 59 S.W. 1091, 22 Ky. Law Rep. 1111; Ward v. Commonwealth, 128 S.W. 72, and cases cited). It is insisted for the appellant that the former indictment was at least sufficient to sustain a conviction for involuntary manslaughter. If the defendant had been acquitted under that indictment, a different question would be presented, but, when he was convicted under that indictment and obtained a new trial, he took it subject to the limitations imposed by the statute, and the case stood precisely as though no trial had been had.

It is insisted that the instructions of the court were erroneous in this: that the first instruction did not use the words, "not in his necessary or apparently necessary self-defense," but an apt and full instruction on self-defense was given, and the jury...