Howard v. Commonwealth

• Decision Date: 19 September 1902
• Citation: 69 S.W. 721
• Parties: HOWARD v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

69 S.W. 721

HOWARD v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

September 19, 1902

Appeal from circuit court, Magoffin county.

"Not to be officially reported."

John W Howard was convicted of the offense of voluntary manslaughter, and he appeals. Affirmed.

D. G Howard and D. D. Sublett, for appellant.

C.J Pratt and McKenzie Todd, for the Commonwealth.

HOBSON J.

Appellant John W. Howard, was found guilty of voluntary manslaughter, and his punishment fixed at 10 years in the penitentiary. The proof shows the following state of facts: The deceased, Fred P. Simer, took supper with the accused at his home in Salyersville on the night of the homicide, and after supper the accused lent the deceased his pistol. Both of them proceeded to get some whisky, and would seem from the evidence to have been considerably under its influence. The deceased shot off his pistol along the streets of the town until he emptied all the chambers. During this time they were separated at intervals. They then got together near the bridge across the State Road Fork, and near a boat, and there they drank beer together. The deceased had just shot his pistol at the house of William Alexander as he came down to the bridge. The defendant remonstrated with him, and the deceased denied having done the shooting. After some words, both being apparently pretty drunk, the deceased drew his pistol, and snapped it at the defendant; but it was empty, he having thrown out the empty shells a few seconds before, and not having reloaded it. The defendant retreated up the road, and the deceased followed him. The defendant was heard to say: "Fred, don't come on me. Stay away from me." The deceased was heard to say, "John, don't do that, don't hit me with that." As they went up the road they were cursing each other. When they had gone about 70 yards, two shots were fired from the man in front at the man in the rear, and the deceased was found dead. Immediately before the shooting, something like the sound of a lick struck with a stick or club was heard, and the defendant was heard to say, "Oh yes; I have got you now, Fred." Up the road a few feet beyond the body of the deceased the defendant's hat was found, and near by it a club. The deceased was bruised about the head and back. He had also a gash on his head. One shot struck him on the hand, and the other near the left nipple.

The deceased was about 18 or 20 years old, and weighed about 120 pounds. The defendant is a large, strong man. As the deceased went up the road, he had his pistol in his hand, and also a club. After he was shot, he was found with the empty pistol still in his hand. The defendant was also bruised about the head.

William Adams, a witness for the commonweath, was allowed to state that on the night of the killing he was on the Cove Branch, and saw the defendant and deceased coming down the branch. Fred was before John. Heard John say, "Stop there, or I will kill you!" This evidence is objected to on the ground that it does not appear to whom the remark was addressed, but, on the facts stated, this was for the jury.

It is also complained that the court refused to continue the case on the affidavit of the defendant on the ground that Dan Brown, one of his witnesses, was not in a mental or physical condition to testify; and that another witness, Sherman Rice, was absent. Dan Brown was introduced on the trial as a witness for the commonwealth, and we see nothing in his testimony to indicate that his mental or physical condition was bad. His statement of facts is much the same as the other witnesses, several in number, who were present. The affidavit was allowed to be read as the deposition of Sherman Rice, and, as this was after the case had been once continued, there was no error in the ruling of the court.

The court, in substance, instructed the jury that if the accused shot and killed the deceased, not in his necessary or apparently necessary self-defense, they should find him guilty of murder, if the shooting was done willfully feloniously, and with malice aforethought; or guilty of voluntary manslaughter if it was done in sudden affray, or in suddden heat and passion, without previous malice; that the law presumed him innocent until his guilt was proven beyond a reasonable doubt; and, if the jury had a reasonable doubt of his being proven guilty, they should find him not guilty, or, if they found him guilty, and had a reasonable doubt as to whether he was guilty of murder or voluntary manslaughter, they should find him guilty of the latter only. He gave the following instruction on self-defense: "Although the jury may believe from the evidence, beyond a reasonable doubt, that the...