McIntosh v. Commonwealth

• Decision Date: 25 October 1906
• Citation: McIntosh v. Commonwealth, 96 S.W. 917 (Ky. Ct. App. 1906)
• Parties: MCINTOSH v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

96 S.W. 917

MCINTOSH v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 25, 1906

Appeal from Circuit Court, Estill County.

"Not to be officially reported."

W. D McIntosh was convicted of voluntary manslaughter, and appeals.Reversed and remanded.

Hugh Riddell, for appellant.

N. B Hays and C. H. Morris, for the Commonwealth.

SETTLE J.

The appellant, W. D. McIntosh, was indicted in the lower court for the murder of Thomas Griffin.Upon the trial the jury, by the verdict returned, found him guilty of voluntary manslaughter, and fixed his punishment at confinement in the penitentiary 15 years.Judgment was entered in conformity therewith.

Appellant insists that he should have been granted a new trial, and also that the judgment should be reversed upon the grounds (1) That the verdict was flagrantly against, and not supported by, the evidence; (2) that the commonwealth's attorney was guilty of misconduct in argument to the jury (3) that the court erred in instructing the jury and in refusing an instruction asked by appellant.

As to the first ground, it is sufficient to say that there was some evidence to the effect that appellant was not justified in shooting the deceased, and it is well settled that this court will not reverse a judgment in a criminal case when there is any evidence conducing to prove the defendant's guilt.

The second ground of complaint is equally untenable.It does not appear from the record that the alleged improper statements of the commonwealth's attorney made in argument to the jury were objected to by counsel for appellant, or that the court was asked to reprove the attorney, or admonish the jury to disregard such statements.It has been repeatedly held by this court that in order to authorize it to consider on appeal error of the trial court in permitting misconduct of counsel in argument to the jury it must appear of record that what was improperly said or done by the counsel was objected to at the time; that the trial judge was asked to rule upon it; that he refused to exclude it, or refused to rule upon it; and that such adverse ruling was excepted to by the party prejudiced.Stinson v. Commonwealth,96 S.W. 463, 29 Ky. Law Rep. 733.

In considering the instructions complained of, we find that those given by the court were substantially correct.The one instruction asked by appellant was properly refused by the court for it was incorrectly worded, but...