Jones v. Commonwealth

• Decision Date: 13 May 1921
• Parties: Jones v. Commonwealth.
• Court: Kentucky Court of Appeals

191 Ky. 485

Jones v. Commonwealth.

Court of Appeals of Kentucky.

Decided May 13, 1921.

Appeal from Whitley Circuit Court.

STEPHENS & STEELY and TYE & SILER for appellant.

CHAS. I. DAWSON, Attorney General, and THOS. B. McGREGOR, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE THOMAS — Reversing.

Upon his trial under an indictment for voluntary manslaughter wherein he was accused of killing Dewey Smith, the appellant Russ Jones was convicted and his punishment fixed at a term of five years' confinement in the penitentiary, upon which judgment was pronounced. Defendant's motion for a new trial, which contained about fifteen reasons why it should be granted, was overruled and he prosecutes this appeal. Many of the specified reasons in the motion are extremely technical and, we think, wholly immaterial, and in the course of this opinion we shall refer to and consider only those which we deem worthy of notice.

The facts of the case are comparatively short and there exists but little, if any, material contradiction in the testimony of the witnesses. The killing occurred between 9 and 10 o'clock on the night of October 2, 1920, on a public road in Whitley county. There was a bright moonlight, but the place of the killing was in the shadow of a tree, thus preventing some of the witnesses, except those immediately present at the place of the shooting, from seeing exactly what occurred. Hence, the only witnesses who saw or pretended to testify as to what happened at the time of the shooting were the defendant and Grace Worley, a young lady between 15 and 16 years of age. There had been a box or pie party at Thomps White's school house in the earlier part of the evening, but it was over with by about 9 o'clock, and the attendants started for their respective homes. Defendant and one or two others went to that party, travelling horseback or muleback and accompanied by no lady companion and the same was true as to the deceased, Dewey Smith. Miss Worley and another young lady went to the party unaccompanied by any gentlemen and they rode the horse of the father of the former. When the party broke up and the people started home, the latter rode behind defendant on the animal he was riding, while her companion rode behind another young gentleman who had gone to the party with defendant, and another young man rode the horse that was ridden by Miss Worley in going to the party. A short distance from the school house the deceased passed defendant and Miss Worley and he and others stopped in front of the barn of Doc Smith, who was the father of deceased, and were engaged in a discussion as to whether they would make up a dance to be held at a neighbor's house to furnish entertainment for a portion of the rest of the night. This discussion was going on when defendant and Miss Worley and the other couple accompanying them overtook the crowd in front of the barn, and during the conversation deceased asked Miss Worley if she would attend the dance if it was gotten up, when she answered in substance that she had promised her father to come home direct from the box party and that she felt like she could not attend the contemplated dance; and some of the witnesses say that she stated in that connection that she had always gone with him anywhere he wanted her to. After a little while she got upon the horse that she had ridden to the party and in company with defendant started down the road in the direction of their homes with others following them a short distance behind. In some 10 or 15 minutes the deceased and his crowd concluded to get up the dance and he started in a gallop down the road in the direction travelled by Miss Worley and defendant, and what occurred when he overtook them is thus told by her: "He came on down the road and galloped in between us and caught hold of my horse's bridle and said to wait and we stopped and Dewey said to me that Aswald Dail told him to bring me back to the crowd where we left them and I told him I couldn't go back and Jones said `what do you think you are celebrating,' and he said `God damn you, I don't think I am celebrating a damn thing.' Jones said `I didn't aim to make you mad,' and Dewey said `shut your mouth you s___ of a b___, or I will kill you,' and Jones said `You will kill the best friend you have got when you do that,' and Dewey cursed Jones two or three times and told him twice again he would shoot him and Jones said to me to let's go and Dewey said, `No, by God, you will not go, you God damned hairy necked s___ of a b___, I will shoot you.'" Some of the witnesses say that the deceased, when he asked Miss Worley if she would attend the dance and upon her answer that she could not because she had promised her father to return home, said, "We will attend to your damned father," and that when she and defendant started away deceased said, "Take him and go to h___1 with him, God damn him." Following the above testimony the witness stated that at the time of the shooting deceased had his back to her and that she could not see what was going on in front of him but she saw his elbow raised and his right hand lifted, but could not see what he was doing with it. The testimony of the defendant as to what occurred just before he and Miss Worley left the crowd in front of the barn and as to what happened at the time of the killing, as shown by the record, is that when he and Miss Worley overtook the crowd in front of the Smith barn deceased said to her, "Where in the hell are you going?" and his testimony continued: "She said `I am started home,' and he said `By God, you are going to the dance,' and she said `No, my father is at home and said for me to bring this mare back,' and he said `God damn your father we will get by him all right,' and she got on her mare and rode up to me and said to let's go and when we started off and got out about 10 steps he said `Go to hell, God damn both of you.' And we rode on and got down the road between Nattie Smith's and Aunt Emily Steely's place and he came on and overtook us and ran between our horses and grabbed my mule by the bridle and turned his mule loose and grabbed her horse's bridle and I said `What do you think you are celebrating,' and he said `You thought you were running away with me,' and I said that I wasn't, that I didn't think that and he said I needn't tell no God damned lie and said he would kill me and I said `You will kill the best friend you have,' and he said `God damn you, I will kill you,' and she said `Dewey, I never saw you do this way before in my life,' he was cursing her and in a few minutes I said to her to let's go and he said `God damn you, Grace, you are not going for Aswold Dail said to bring you back, and I will kill you, you God damned hairy necked s___ of a b___' and I shot him." He subsequently stated that deceased ran his right hand in his bosom as if to draw a weapon and that he thought deceased was going to shoot him or inflict upon him great bodily harm and that he shot deceased in what he believed was his necessary self-defense. The testimony of these two witnesses is not materially contradicted by any other witnesses although it is shown that the deceased, who was shot in the head and fell dead in the road, had no pistol though he had a knife in the pocket of his pantaloons. It appears from the testimony that deceased had been paying attentions to Miss Worley for something like three years while defendant had been in her company only two or three times before the fatal occasion.

One of the grounds urged for...