Milburn v. Commonwealth
| Citation | 223 Ky. 188 |
| Parties | Milburn v. Commonwealth. |
| Decision Date | 17 February 1928 |
| Court | United States State Supreme Court (Kentucky) |
1. Criminal Law. — Where affidavits for continuance on account of absence of witnesses set out what absent witnesses would testify if present, all of which related to appellant's mental condition, and number of witnesses testified to substantially same facts as set out in affidavits, and affidavits were read as depositions of absent witnesses, overruling of motion for continuance was not error.
2. Homicide. — Indictment for murder alleging that deceased died from shooting shortly thereafter and record showing indictment was returned within year after shooting was not demurrable for failure to charge that deceased died within year and day after shooting, and was sufficiently concise and certain to enable person with common understanding to know what was intended.
3. Criminal Law. — Though fact of drunkenness in case of homicide may be circumstance showing absence of malice, it should not be singled out from other proof, and jury should not be instructed that it mitigates offense.
4. Homicide. — In prosecution for murder, defended on grounds of insanity arising from use of drugs and drunkenness, instruction authorizing jury to consider mental condition of accused, resulting from voluntary use of intoxicating liquor or drugs, in determining whether accused was acting with malice, though erroneous, was not prejudicial to accused, since it afforded additional grounds for mitigating punishment and was favorable to him and prejudicial to commonwealth.
5. Criminal Law. — Same rule as to criminal responsibility should apply to person under influence of drug taken voluntarily and not as medicine as applies to person drunk from voluntary use of intoxicating liquor.
6. Homicide. — In prosecution for murder of policeman, where there was no evidence tending to show that accused's mother and sister were in any danger, real or apparent, and there was no claim that accused shot in their defense, omission from instruction on self-defense of any reference to shooting in defense of members of accused's family was not error.
7. Homicide. — In prosecution for murder, malice may be presumed from facts and circumstances in evidence, and particularly from
wanton use of deadly weapons, and hence instruction on murder was not error because of failure to prove malice.
Appeal from Daviess Circuit Court.
ELMER L. BROWN and AUD & HIGDON for appellant.
FRANK E. DAUGHERTY, Attorney General, and CHAS. F. CREAL, Assistant Attorney General, for appellee.
Affirming.
Appellant, John Milburn, was indicted in the Daviess circuit court for the willful murder of Chas. A. Hays, a policeman of the city of Owensboro, and on the trial of the case he was found guilty and his punishment fixed at confinement in the penitentiary for life.
The facts briefly stated are these: Late in the afternoon on February 25, 1926, the appellant engaged in an altercation on the streets of Owensboro during which he shot and wounded one Mary King. The chief of police was notified, and he sent Hays and three other police officers to the scene of the difficulty. The officers found that appellant had gone to the home of his mother, with whom he resided, and they proceeded to her home with the intention of arresting appellant. The appellant and his mother and sister occupied an apartment on the second floor of a building at the corner of Ninth street and Leitchfield road. A stairway led from the sidewalk to the second floor of the building. When the officers arrived at appellant's home they heard some one say, "Hold him; don't turn him loose." Immediately following this remark appellant appeared at the top of the stairway with a pistol in his hand; he started down the steps and began firing at the officers, who were standing at the foot of the stairway; he fired several shots, wounding the decedent and one of the other officers. The appellant fired several shots before any shot was fired by the officers. Hays died on July 10, 1926. Two physicians testified that in their opinion death resulted from the gun-shot wound inflicted by appellant.
Appellant relies upon the following grounds for a reversal: (1) That the court erred in overruling his motion for a continuance; (2) that the demurrer to the indictment should have been sustained; and (3) alleged errors in the instructions.
The indictment was returned on October 6, 1926. The case was continued from time to time until February 14, 1927, when appellant's motion for a continuance on account of the absence of certain witnesses was overruled by the court. In support of his motion for a continuance, he filed his affidavits in which he set out what the absent witnesses would testify if present. All of the evidence of the absent witnesses as shown by the affidavits related to the mental condition of appellant. A number of witnesses testified to substantially the same facts set out in the affidavits, and as the affidavits were read as the depositions of the absent witnesses, the trial court did not err in overruling the motion. Miller v. Commonwealth, 200 Ky. 435, 255 S.W. 96.
It is insisted that the demurrer to the indictment should have been sustained because it does not charge that Hays died within a...
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