Mullins v. Commonwealth
| Decision Date | 27 January 1939 |
| Citation | 276 Ky. 555 |
| Parties | Mullins v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
2. Criminal Law. — When the evidence, even though it be circumstantial, affords fair and reasonable ground upon which verdict might be rested, case should go to jury.
3. Criminal Law. — Where commonwealth's testimony fails to incriminate accused or is insufficient to show guilt, accused is entitled to a peremptory instruction.
4. Criminal Law. — Where it was shown that accused had been convicted for felony, question by commonwealth's attorney as to how long accused had been out of penitentiary before he had trouble with complaining witness was not prejudicial.
5. Indictment and Information. — The offense of shooting in sudden affray is a lower degree of the offense of shooting at another with a deadly weapon with intent to kill (Ky. Stats., secs. 1166, 1242).
6. Assault and Battery. — Instruction on shooting in sudden affray should be given where facts authorize it (Ky. Stats., sec. 1242).
7. Assault and Battery. — Where accused was charged with shooting at another with a deadly weapon with intent to kill and proof showed that accused fired shot or shots at complaining witness in his home at a time when he was there, failure to give instruction on shooting in sudden affray was not error (Ky. Stats., secs. 1166, 1242).
8. Homicide. — In prosecution for shooting at another with a deadly weapon with intent to kill, that instruction which could have had reference only to offense charged added words "Not in his necessary, or apparent necessary self-defense" was not prejudicial to accused where facts showed that person shot at could not have been offensive to defendant in any way (Ky. Stats., sec. 1166).
Appeal from Knott Circuit Court.
CARL PERKINS for appellant.
HUBERT MEREDITH, Attorney General, and WILLIAM F. NEILL, Assistant Attorney General, for appellee.
Affirming.
Appellant and Lawrence Yonts were jointly charged by true bill with the offense of shooting at another with a deadly weapon with intent to kill. Kentucky Statutes, Section 1166. They were jointly tried, but the court peremptorily directed the jury to find Yonts not guilty, since testimony showed that Yonts was not armed at the time of the shooting. The jury found appellant guilty and fixed the penalty at two years confinement in the penitentiary. Motion for a new trial was overruled, judgment entered according to the verdict and this appeal is prosecuted.
While setting out some ten or more grounds in support of motion for a new trial, appellant is here urging this court to reverse the judgment, because (a). The court should have directed the jury to return a not guilty verdict; (b) of admission of incompetent evidence, and (c) the court failed to give to the jury instructions on shooting without wounding in sudden affray. Kentucky Statutes, Section 1242.
Melvin Holbrook, the complaining witness, with his family, lived on Puncheon Creek, in Knott County, his house being about thirty or forty feet from the county road. On the night of the rencounter several neighboring boys had gone to a "bean stringing" at the home of a neighbor, who lived below Holbrook's home, and in going from and returning to their homes had to pass his home. After the party broke up about midnight, the young men were returning to their homes, hallooing, singing, and one "picking" a guitar. Those leaving the party were in two groups, Mullins and Yonts in front, and three or four others a short distance in the rear. Just about the time, as is shown by the proof, when Mullins and Yonts were closer to Holbrook's home than those in the rear, two shots were fired at the house, one of the bullets going within a few feet of Holbrook while he was lying on the bed.
Holbrook, testifying on cross-examination, said that he arose, went out of the house and fired in the direction where some of the boys were gathered. Appellant admits that he fired back "towards the blaze," from what was evidently a shotgun in the hands of complaining witness. It is not exactly clear, but is deducible from the evidence, that Holbrook again fired, as did appellant. This is not an important circumstance, since it is clear from the indictment that this latter shooting by appellant was not the offense charged, or for which he was tried.
Holbrook said he knew the voices of both appellant and Yonts, and makes it clear that the shots were fired by one or the other of the two who were indicted. He also said that there was ill-feeling on the part of the two accused against him, because when he was an officer he had "turned them in to the magistrate for being drunk."
Other witnesses, some of whom were in Holbrook's home, testified as to the shooting at and into the house, and though none of them saw who fired the shot, they were familiar with the voices, and testified that the shots came from those of the party who were nearer to and almost opposite the house. Holbrook recognized appellant's voice as they passed the house, the Mullins boy saying "he was a rounder and didn't give a damn for nothing." He also testifies that after the two shots were fired, appellant called out, "I am going to start me a G.D. nigger graveyard." One witness, who was with the parties in the rear of appellant and Yonts, heard a pistol shot or shots, and as he and his companions got nearer the house he heard more shots.
R.E. Holbrook, whose son was in the crowd in the rear, heard the shooting and went at once to look for his boy. Witness was standing by the side of the road and told appellant, "There is no use of that shooting," and appellant said that Melvin had shot at them and tried to kill them, and had tackled the wrong man. At this time the two crowds had gotten together above Holbrook's house. This witness described the shots heard, and makes it clear that the first report was from a smaller weapon, followed later by louder reports, and then again the smaller.
The evidence on the whole fails to disclose that any person in the crowd of five or six, save appellant, had a weapon. He was seen with his pistol immediately after the shooting. Appellant offered no testimony, other than his own. He had been to the "bean stringing" and left around midnight, in company with Yonts, and they were in advance of Millard and Albro Hall, and some other boys. He heard two shots from the rear, at a time when he was 30 or 40 yards from Melvin Holbrook's home. He did not know who did the shooting. He absolved Yonts by saying that he was not armed.
Appellant says that after the two shots were fired, he turned around and saw the blaze from a gun We might pause to query, why? He then returned the fire with his pistol, in the direction of the blaze from the gun. He denied that he had talked about doing Mr. Holbrook any harm that night, but did not fully deny that he had made the remarks attributed to him by other witnesses. He admitted the ill-feeling between the families.
When asked on cross-examination if he shot into Holbrook's house, he said: "I don't know if I did or not," though it may be assumed that he had reference to his firing after Holbrook came out.
From the facts as above related, we have no difficulty in concluding that they were sufficient to take the case to the jury. It is true that no one saw appellant fire the shots, or any of them, particularly such as it is claimed went into or struck Holbrook's house. However, the physical facts and circumstances detailed are...
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