Little v. Commonwealth

• Decision Date: 09 October 1917
• Citation: 197 S.W. 514,177 Ky. 24
• Parties: LITTLE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

197 S.W. 514

177 Ky. 24

LITTLE v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 9, 1917

Appeal from Circuit Court, Breathitt County.

Breck Little was convicted of murder, and he appeals. Affirmed.

W. H Blanton, A. S. Johnson, and A. H. Patton, all of Jackson, and Hazelrigg & Hazelrigg, of Frankfort, for appellant.

Chas H. Morris, Atty. Gen., and D. M. Howerton, Asst. Atty. Gen for the Commonwealth.

THOMAS J.

The appellant was tried in the Breathitt circuit court upon the charge of willfully murdering Mitchell Crawford, and his punishment fixed at confinement in the penitentiary during his natural life. To reverse the judgment pronounced upon the verdict, he prosecutes this appeal.

Numerous complaints of the verdict and judgment were incorporated in the motion for a new trial, but they all appear to have been abandoned upon this appeal, except (1) incompetent testimony alleged to have been given by the commonwealth's witness.

John Anderson; and (2) that the testimony was not sufficient to authorize the submission to the jury or the conviction of the defendant of the crime of murder.

A substantial statement of the facts are that the defendant is 27 years of age, and the deceased only 17 years old; the latter being a person of color. John Anderson is the father-in-law of the appellant, and lives in Breathitt county, near where Old Buck creek empties into a prong of the Kentucky river. Some time in the forenoon, perhaps between 9 and 10 o'clock, on the day of the homicide (which was Sunday), the defendant went to the house of his father-in-law, John Anderson, on a mission, as he claims, of buying some geese. He left home with some whisky, some of which he drank on the way, and gave some of it to his father-in-law after arriving at the latter's house, and they also drank of some brandy, which the father-in-law had in his house. After some time spent in this way, some one suggested that they go to the barn, located some distance from the house, and appellant went out in the yard to talk with one Turner, and after finishing that conversation he started toward the barn, calling to his father-in-law to follow him. Just before, or about that time, the deceased appeared in the house of John Anderson, and when the latter started to the barn the deceased followed along, and after the three got to the barn something was said about some chewing tobacco, and deceased remarked that he had a twist at his house, which was not far away, and that he would go and get it, which he did. However, before this was done, some more drinks were taken by both Anderson and the appellant, and perhaps the deceased, after arriving at the barn. When the tobacco was brought, the deceased sold half of it to John Anderson for a nickel, and it was proposed by some one (but by whom the proof is not clear) that deceased and appellant play cards to determine who should have the other half of it. The appellant would not agree to this, and, according to the testimony of John Anderson, he finally "cussed him [deceased], and told him he didn't want the G____ d____ old tobacco, or something to that amount." In the meantime the drinking continued, but after the dispute as to whether the game of cards would be played for the tobacco the witness Anderson proposed that they go to the mouth of the creek, which was on the way to the house, as time for the noonday meal was approaching. In leaving the barn, the witness Anderson was in front, followed by appellant, who in turn was followed by the deceased. Anderson does not state what was said, but he heard a conversation between the two which he terms "yaggering." It is not explained what he means by that term, but we suppose that it was some general talk passing between the two, such as occurs between persons more or less intoxicated. About the time they arrived at the gate, to go into the road, which was a very short distance from the barn, a pistol fired, and the witness Anderson turned to see what was the matter. He describes the parties as facing each other, but according to his recollection, neither had hold of the other; two more shots were fired by the appellant, after which he got on his mule and rode away. Two of the shots were fired into the left side of the deceased, and the other was through his head, instantly killing him. Mrs. Anderson, who was in the kitchen preparing dinner, heard the first shot and ran to the door, and it appeared to her that the parties had hold of each other, and that appellant was trying to get loose from the deceased; but he fired the last two shots after the witness saw them. Kelly Anderson, a seven year old boy of John Anderson and wife, testified that he was up the road, a short distance from the barn, getting some stove wood, and that he heard the appellant say to witness' father, "John, do you want to see a negro die?" and that appellant thereupon fired the shots which killed the deceased. This witness also testified that after the first shot the deceased said, "Breck, what did you want to shoot me for?"

The version of the appellant as to how the homicide occurred, as told by himself on the witness stand, is:

"Well, I was over at John Anderson's to buy some geese and hogs from Ronan Judd. I went over there, and I had some whisky, and John had a little. I think I had drank that much in a pint bottle (witness indicates); three or four drinks I drank, and me and John was up at the barn, and the negro wanted to play cards for some tobacco, and I told him I wouldn't play with him for the tobacco, and he said the tobacco was up at home, and he wanted to play there for the tobacco, wanted to play cards for the tobacco, and I told him I didn't want to play for it; that I had something else to see about; that I had some geese to take down to that fellow, Ronan Judd, and he says, 'By God, you will play for it as quick as I go up home and get it;' and I said, 'I don't aim to;' and he took right out the road, and went and got the tobacco, and come back; but, when he started, I said, 'Mitch, you needn't go after it for I won't play nary game with you;' and he went right on and got the tobacco and came back and tried to get me to play for it, and said, 'God damn you to h____, you will play for it;' and I

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