Mullins v. Commonwealth

• Decision Date: 17 April 1902
• Citation: 67 S.W. 824
• Parties: MULLINS v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

67 S.W. 824

MULLINS v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

April 17, 1902

Appeal from circuit court, Letcher county.

"Not to be officially reported."

Ben Mullins was convicted of the offense of voluntary manslaughter, and he appeals. Reversed.

W. F Hall, for appellant.

R. J Breckinridge, for the Commonwealth.

HOBSON J.

Appellant Ben Mullins, was indicted in the Letcher circuit court for the murder of Elbert Mullins, and was found guilty of voluntary manslaughter, and his punishment fixed at 12 years' confinement in the penitentiary. The evidence on behalf of the commonwealth showed that appellant lived with his father. The deceased came to the house, and called appellant out to the fence. Several others were present, and in a few moments a pistol shot was fired, and the deceased was found on the ground, dead. The evidence for the commonwealth does not show any of the facts leading up to the shooting, except as they may be inferred from the circumstances. The evidence for the defendant is to the effect that the deceased came there to sell some plank to another person, who was present, and when they had traded appellant said to the deceased that the deceased owed him $5 and he would like to get that out of the money coming for the plank. The deceased said he did not owe him anything, and some further words passing between them, the deceased called the appellant a liar. The deceased was sitting on his horse, and appellant was on top of the fence. Both jumped to the ground. The deceased drew his knife and started at the appellant. The appellant then drew a pistol and shot the deceased. Appellant is 16 years of age. The deceased was a married man. One of the witnesses by whom appellant proved these facts was Harp Kelley. After laying the proper foundation by questions asked Kelley on cross-examination, the commonwealth was allowed to prove, by Lisa Stewart, that on the day of the killing, or the next day, Kelley told her that Elbert Mullins, the deceased, was on his mare when shot, that he was shot for nothing, and that Reuben Mullins, the father of appellant, had offered him $400 if he would fetch appellant out. The commonwealth also proved in like manner, by Isadore Allison, that Kelley told him, shortly after the killing, when asked why appellant killed the deceased, that appellant said he owed him some and would not pay it, and he killed him for it. In Kennedy v. Com., 77 Ky. 340, it was held incompetent to contradict a witness by showing that he had said that it was an awful murder, and there was no cause for it; but this witness was not present at the homicide, and did not testify as to the facts attending it. The contradictory statements admitted in evidence were not inconsistent with anything which the witness had testified to in his examination in chief by the defendant. In the case before us the testimony of Kelley related to the facts attending the homicide, and made out a case of self-defense. His statements to Lisa Stewart that the deceased was shot for nothing while on his horse, and to Isadore Allison, that appellant killed him because he owed him and would not pay the debt, were inconsistent with the testimony of the witness given on the trial, and were properly admitted in evidence. But this evidence was only admissible for the purpose of impeaching the witness, and not as substantive testimony against appellant. The court should have so instructed the jury. ...