Lawson v. Commonwealth

• Citation: 169 S.W. 494,159 Ky. 757
• Parties: LAWSON v. COMMONWEALTH.
• Decision Date: 25 September 1914
• Court: Kentucky Court of Appeals

169 S.W. 494

159 Ky. 757

LAWSON v. COMMONWEALTH.

Court of Appeals of Kentucky.

September 25, 1914

Appeal from Circuit Court, Whitley County.

Mat Lawson was convicted of shooting at another with intent to kill, but without wounding him, and he appeals. Reversed and remanded.

L. L Peace and Rose & Pope, all of Williamsburg, for appellant.

James Garnett, Atty. Gen., and Overton S. Hogan, Asst. Atty. Gen for the Commonwealth.

SETTLE J.

The appellant, Mat Lawson, was tried in the court below under an indictment charging him with the crime of maliciously shooting at another with intent to kill, but without wounding him. By the verdict of the jury he was found guilty, and the judgment of the court entered thereon fixed his punishment at confinement in the penitentiary not less than one nor more than five years. He complains of the verdict and judgment hence this appeal.

Only one of the numerous grounds urged in the court below for a new trial is relied on for a reversal of the judgment, namely, the refusal of that court to grant him a continuance of the case upon the affidavit filed in support of his motion therefor. It appears from the affidavit that six of the appellant's witnesses named therein were not in attendance upon the trial, although all of them were residents of Whitley county, and five of them had been duly served with a subp na; also that they were absent without his procurement or consent. The affidavit sets out the testimony which appellant claimed would be given by them in his behalf if present at the trial, and amply shows the materiality of the facts to which they would testify and that he could not safely go into trial without the presence and testimony of these witnesses. The circuit court refused the continuance, but ordered forthwith attachments for the witnesses, and advised the appellant that he would be permitted to read in his behalf on the trial, as the depositions of the absent witnesses, such parts of the affidavit as purported to contain the facts to which it was claimed they would testify, but further ruled that the commonwealth's attorney would not be required to admit the truth thereof, and would be privileged to introduce evidence to contradict such testimony and impeach the credibility of the witnesses. Thereupon appellant expressed his unwillingness to go into trial in the absence of the witnesses named in the affidavit, unless the commonwealth's attorney would admit as true the facts to which it was claimed in the affidavit they would testify if present. This admission the commonwealth's attorney refused to make, which refusal was sustained by the court; and when, in the introduction of the evidence in his behalf, appellant offered to introduce as evidence the statements of the absent witnesses set forth in the affidavit, the court again refusing to require the commonwealth's attorney to admit the truth of the testimony attributed to the absent witnesses, appellant declined to introduce or read the testimony in question to the jury.

It appears from the record that exceptions were duly taken and entered by appellant to the rulings of the court refusing him a continuance and compelling him to go into trial without the admission upon the part of the commonwealth of the truth of the testimony of the absent witnesses presented by his affidavit. In order that the materiality of the evidence in the possession of the absent witnesses may be understood, it will be necessary in this connection to give a brief statement of the facts with respect to the commission of the offense for which appellant was convicted. It was the theory of the commonwealth, and its evidence conduced to show, that appellant had been...