Maiden v. Commonwealth

• Decision Date: 27 May 1924
• Citation: 262 S.W. 588,203 Ky. 446
• Parties: MAIDEN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

262 S.W. 588

203 Ky. 446

MAIDEN v. COMMONWEALTH.

Court of Appeals of Kentucky.

May 27, 1924

Appeal from Circuit Court, Whitley County.

George Maiden was convicted of voluntary manslaughter, and appeals. Affirmed.

Stephens & Steely, of Williamsburg, for appellant.

Frank E. Daugherty, Atty. Gen., and Gardner K. Byers, Asst. Atty Gen., for the Commonwealth.

SETTLE J.

The appellant, George Maiden, following his indictment by the grand jury of Whitley county for the murder of Virgil Reynolds, was, on his trial in the Whitley circuit court for the crime charged, by verdict of a jury found guilty of voluntary manslaughter and his punishment fixed at confinement in the penitentiary for a period of 10 years. He was refused a new trial, his complaint of which and of the judgment of conviction led to the granting to him and his prosecution of the present appeal.

The grounds relied on by the appellant for the reversal of the judgment are that he was prejudiced in his substantial rights, because of error committed by the trial court: (1) In instructing the jury. (2) In failing to peremptorily instruct the jury to return a verdict finding him "not guilty."

Stripped of unnecessary details, the evidence introduced on the appellant's trial in behalf of the commonwealth was substantially as follows: The victim of the homicide, Virgil Reynolds, a boy 16 years of age, son of John Reynolds, was shot and killed by the appellant, a young unmarried man 23 years of age, about 2:30 p. m. November 17, 1923, in a barn near the residence and upon the premises of the boy's father. At that time the family of John Reynolds consisted of himself, his wife, Martha, the stepmother of his children Dovey, an unmarried daughter 18 years of age, and the son Virgil. The appellant was living with his parents, whose home was about a mile from that of John Reynolds. On the morning of the homicide the appellant left his father's home carrying with him a single-barrel shotgun and went to High Cliff, a village a half mile away, and about the same distance from the Reynolds home. After remaining a short time at High Cliff, he left there to go to the residence of Reynolds, taking with him a pint bottle of moonshine whisky he had obtained at High Cliff, and from which, while at the latter place or on the way to Reynolds, he drank some of the whisky. He arrived at the Reynolds home at 10:30 a. m. and there met Reynolds, his wife, and two children, all of whom were in the house. Upon entering the house, appellant left his shotgun on the front porch. John Reynolds, his wife and daughter, each testified that he then appeared to be considerably under the influence of intoxicating liquor; and that after getting into the house he pulled a half filled pint bottle of whisky from his pocket and offered each member of the family a drink of the contents, which was declined by all of them except John Reynolds, who put the bottle to his mouth and pretended to drink of its contents for the purpose as he testified, of keeping the appellant in a good humor. About noon the Reynolds' family served dinner, to which the appellant was invited; but he declined the invitation, saying he had previously taken dinner. The record contains no evidence of the existence, prior to the day of the homicide, of any bad feeling between the appellant and Virgil Reynolds; but there was evidence that the former had previously made occasional visits to the Reynolds family and seemed to be on friendly terms with Virgil. It is, however, apparent from this evidence that Dovey Reynolds, the daughter of John Reynolds, was the object of attraction to him at the Reynolds home; and equally apparent therefrom that his attentions were not looked upon with favor by her, or regarded with complacency by the father.

The attitude of the daughter toward the appellant is shown, both by her testimony and his, to the effect that only a few days before the occurrence of the homicide she, upon being requested by the appellant to be permitted to accompany her to church the following Sunday, viz. the Sunday succeeding the day of the homicide, manifested her disinclination to grant the request by responding that she would later give him an answer. This response was unattended by any statement from her of a reason for delaying the answer, or that fixed a time for giving it. Indeed, she never gave an answer to the request, although it was repeated by the appellant on the day of the homicide and before its occurrence.

The unwillingness of the father to have the appellant at his home, whether it arose out of his opposition to the latter's attentions to his daughter, or from his partly intoxicated condition was manifested by his attempt made, as he testified, shortly after dinner, to get him to leave it by inviting him to accompany him to a store near at hand, where he went to purchase some family supplies. The attempt was thwarted, however, by the appellant's refusal of the invitation. Whereupon Reynolds went to the store alone and upon returning to his residence found the appellant still there in the front room with Mrs. Reynolds and the son and daughter.

Reynolds then learned from his wife and children and also from appellant that his son Virgil and the appellant had been amusing themselves in his absence by playing "pranks" each upon the other, during which Virgil had rubbed red pepper on the mouth or lips of the appellant that proved to be painful; and that in an effort to relieve this pain Mrs. Reynolds or the daughter, Dovey, had applied lard to his lips. According to the testimony of the witness, the appellant then seemed to be in an ill humor, and said to him, in telling of Virgil's rubbing the pepper on his lips:

"That is dangerous." "I have got nervous trouble, and it is liable to kill me." "There is lots of men, if you would do that to them, they would kill you." "I am as nervy a man as ever saw this county."

Mrs. Reynolds and Dovey Reynolds observed that the appellant had been drinking and saw the pranks played by him and Virgil upon each other that ended with the rubbing of the pepper by Virgil on the mouth of the appellant, which, as they testified, appeared to put the latter in a bad temper and caused him to spit on Virgil's foot and kick at him.

John Reynolds, after his return from the store he had visited remained a short time at home and then went to another store, also near his residence, to purchase some apples which he failed to find at the store first visited. He had his son Virgil to go to this store with him in the hope that his absence from home would induce the departure therefrom of the appellant; but on their return home, after a brief stay at the store, they found the appellant still in the house; and that in their absence another visitor, one Ola Lovitt, had arrived. When they entered the house, the appellant and Lovitt were discussing hunting, and upon Lovitt's expressing a wish to see the appellant's gun, the latter went out to the porch and got the gun, carried it into the room occupied by the company present, and sat down with it in his lap, at which time it was pointed toward John Reynolds, or, as testified by the latter, "presented at him." Upon Lovitt's attempting to take the gun in his hand, the appellant removed the load it contained and handed it to him. After inspecting the gun, Lovitt returned it to appellant, who then...