Ludwig v. Commonwealth

• Decision Date: 20 December 1900
• Citation: 60 S.W. 8
• Parties: LUDWIG v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

60 S.W. 8

LUDWIG v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

December 20, 1900

Appeal from circuit court, Fayette county.

"Not to be officially reported."

John H Ludwig was convicted of the offense of murder, and he appeals. Affirmed.

R. C Rives and E. H. Gaither, for appellant.

R. J Breckinridge, for the Commonwealth.

BURNAM J.

Having been convicted and sentenced to the penitentiary for life for the murder of Mart. Stevens, John H. Ludwig has appealed to this court to obtain a reversal of that judgment. The grounds relied on in the brief of appellant's counsel are, first that the testimony fails to show that the death of Stevens was the result of, or was caused by, any act of appellant. On this point the witness Tillett testifies: That the deceased was engaged in hauling cinders in a wheelbarrow from the roundhouse, and dumping them before the building. That he saw appellant walk up to him, with his left hand in his inside pocket, and grab him in the collar. That a scuffle then ensued between them, and that he saw appellant draw out a knife, but that he did not open it. Thereupon Stevens shoved him back from him, and picked up a rammer used in tamping the cinders. That appellant then stepped back two or three steps and said, "What is the matter with you?" That Stevens thereupon started towards him with the rammer drawn, but stopped before reaching him, and laid the rammer down on the crossing. That, after he did this, appellant drew his pistol with his left hand, changed it to his right, and fired. That Stevens was standing still and making no demonstration at the time. That he immediately sank down, and died in 30 minutes. The witness Baker testifies that the body of the deceased was brought to his undertaking establishment to be prepared for burial, and that when he had removed the clothing he found that the pistol ball had entered just above the left nipple. It seems to us that this testimony furnishes the most conclusive response to this contention that could possibly be given, and the court did not err in refusing to instruct the jury to find appellant not guilty on this ground.

It is next contended that the testimony in this case furnishes no evidence of malice on the part of appellant, and that the court erred in giving the instruction authorizing the jury to find the defendant guilty of murder. In response to this suggestion it may be said that "malice," in its legal...