Lee v. Com.
| Citation | 305 Ky. 734,205 S.W.2d 509 |
| Parties | LEE v. COMMONWEALTH. |
| Decision Date | 31 October 1947 |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Powell County; W. J. Baxter, Judge.
Noah Lee was convicted of voluntary manslaughter and he appeals.
Judgment reversed.
Beverly White, of Winchester, for appellant.
Eldon S. Dummit, Atty. Gen., and Guy H. Herdman, Asst. Atty. Gen for appellee.
In the late afternoon of November 19, 1946 appellant, Noah Lee, shot and killed Lee Ballard on appellant's premises in Powell County, which he had lately purchased from the Angel heirs. Mrs. Angel, the widow married the deceased following her first husband's death.
The purchase of the tract by appellant was at public auction and the auctioneer testified that there were certain articles of personal property excluded from the sale, as well as the right of pasturage on a certain field until the first of the following January. The deceased with his family resided on a farm some two miles from the one they had sold to appellant. On the latter tract there was a log dwelling house and a barn, the first of which appellant, after his purchase, had practically dismantled by taking out one entire end and piling the logs in front of the house, which some of the witnesses said was as high as five feet. Some of the side logs were also removed and the floor torn up.
A controversy had arisen between appellant and the deceased and, perhaps, other members of his family, as to what rights had been reserved. At an early hour of the day of the homicide appellant sent a note to Ballard which said:
A son, Clarence Angel, 18 years of age, lived with his mother and his step-father at their home located, as we have said, two miles from the place where the homicide occurred. On the afternoon of the day indicated the deceased and his step-son spent part of the afternoon in stripping tobacco and shucking corn, finishing around 4:30 p. m. Shortly after that the step-son discovered that one of the cows belonging to the family was missing and since she had theretofore been pastured on the sold tract, both before and after the sale of it to appellant, he and his step-father went to the tract that had been sold, the step-son carrying along a shotgun for the purpose, as he stated, to kill whatever game might be found enroute.
The old log house that had been dismantled was some 30 or 40 feet from the public road which it faced. At the edge of the road there was a ditch some foot or more deep. They had not traveled that road all the way but entered it somewhere close to the place where the homicide was committed. The step-son testified that just as he and his step-father arrived in front of the log cabin appellant rose from behind the log pile above described and asked, 'What are you doing there?' and then fired 'two or three times from his pistol', two shots hitting the deceased. One of the bullets, according to the undertaker, entered his body 'in the approximate center of the left side just to the left of the medial line, coming out below the center rib on the right-hand side'. The other wound was a 'flesh wound on his right center finger.' The step-son also testified that after receiving the body wound as described the deceased began to reel and fell in the ditch, but in falling he grabbed the gun which witness was carrying and fell before he could use it. Appellant testified that Angel pointed his shotgun at him but before it could be fired deceased grabbed it and likewise pointed it at him, when he commenced shooting. He denied being behind the log pile, but the coroner and several other witnesses testified that some four or five empty shells from a .38 caliber pistol were found behind the breast work of logs. He also testified that when he asked Angel, 'where he was going with that gun', he at the same time said: 'I told them not to come in there, I don't want to have any trouble, go on home' when Angel asked, 'What does all this mean?', and it was then that he pointed the gun at him (appellant) when he fired the first shot in the ground in order to frighten them away.
Rondle Lee, son of appellant, in some respects corroborated the testimony of his father, but he was located behind the remnant of the dismantled cabin and could see, at least a part of the time, only through the openings in it. He was also partially behind the truck that he and his father had driven to the place, carrying some material to repair some of the fences on the premises, in which they claimed to have been engaged when deceased and his step-son appeared. The above is substantially the evidence heard at the trial, though some more or less minor circumstances were proven by both the Commonwealth and the appellant in substantiation of their respective theories.
The court instructed the jury...
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Carnes v. Com.
...down and then turn and knock another one down.' Appellant relies on Martin v. Com., 299 Ky. 1, 184 S.W.2d 234 (1944); Lee v. Com., 305 Ky. 734, 205 S.W.2d 509 (1947); Gross v. Com., 299 Ky. 518, 186 S.W.2d 190 (1945) and Small v. Com., Ky., 257 S.W.2d 906 (1953). The Commonwealth asserts th......
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Howard v. Com.
...or variance which does not affect substantial rights shall be disregarded. Based upon the reasoning of that rule and Lee v. Commonwealth, 305 Ky. 734, 205 S.W.2d 509, and cases collated in 6 Ky.Dig. 2, Criminal Law, k684, 1168(2), we are impelled to the conclusion that there is no merit in ......
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