Mullins v. Commonwealth

• Decision Date: 10 October 1919
• Citation: 215 S.W. 56,185 Ky. 326
• Parties: MULLINS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

215 S.W. 56

185 Ky. 326

MULLINS v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 10, 1919

Appeal from Circuit Court, Laurel County.

William Mullins was convicted of voluntary manslaughter, and he appeals. Affirmed.

C. C Williams, of Mt. Vernon, and Hazlewood & Johnson, of London for appellant.

Chas H. Morris, Atty. Gen., and Overton S. Hogan, Asst. Atty Gen., for the Commonwealth.

THOMAS J.

The appellant, William Mullins, was jointly indicted with T. J. Johnson, Jr., by the grand jury of Laurel county, for the murder of Luther Manus, and upon his separate trial he was convicted of voluntary manslaughter and his punishment fixed at confinement in the penitentiary for ten years, and, complaining of the judgment, he prosecutes this appeal.

Practically all of the grounds authorized by the Code are contained in the motion for a new trial, but on this appeal only three contentions are made, and only one of those is discussed with apparent confidence on the part of counsel. The contentions referred to are: (1) That the evidence is insufficient to support the verdict; (2) error of the court in rejecting offered evidence; and (3) newly discovered evidence material to the defense, and which was not and could not have been discovered by the exercise of ordinary diligence. A disposition of these contentions requires a brief statement of the facts as disclosed by the testimony of both the commonwealth and the defendant, as well as those contained in the affidavits of the alleged newly discovered witnesses.

The defendants were partners, engaged in the livery stable business in London, Ky. and had been so engaged for about a month before the killing, prior to which appellant lived at Mt. Vernon, Rockcastle county, the home of deceased, whom he had known for about ten years, while defendant Johnson was wholly unacquainted with him. The homicide occurred about one mile south of Pittsburg, in Laurel county, between 9 and 10 o'clock on Saturday night. In the early afternoon of that day, the deceased came to the defendants' stable and had a conversation with appellant relative to procuring some whisky from a man by the name of Barnett, who lived about 6 miles from London, and who either was or had been engaged in illicit distilling. After some conversation, it was agreed that the three would make the trip to Barnett's, which was undertaken about 4 o'clock that afternoon; each of the parties riding horses obtained from the stable, and for which deceased agreed to pay. Each one carried along with him a pair of saddlebags, and when they arrived at Barnett's the deceased paid for three gallons of whisky, which was put into quart bottles. Johnson also purchased a gallon, which was similarly prepared. While the whisky was being bottled, they all took a drink; it appearing that the deceased took a very large one. Mrs. Barnett testified on behalf of the commonwealth that, while eating a lunch she had prepared, the deceased attempted to cut a piece of sausage with the back of his knife, when she said to him: "I will hand you a knife in a minute," whereupon appellant said:

"Let him cut it with his big knife, damn him; I have hardly got good pockets in my clothes, much less a big knife."

She said that she attempted to pour a second cup of coffee for deceased, when appellant remarked:

"Give him all he can eat and drink; if he gets drunk, I will kill him before he gets to London."

She then adds:

"They seemed to be joking and deviling; didn't seem to be mad."

The whisky was put into the saddle pockets after each party paid for the amount he purchased. Obtaining an extra pint for use on the way, the parties started for London. At a bridge over the railroad about a mile north of Pittsburg, they met some acquaintances to whom they offered and gave drink; and it is claimed by defendants and two witnesses whom they introduced that deceased then called for a knife with which to open one of his bottles, and that appellant gave him his knife, which was not returned after the bottle was opened. After leaving the bridge, they stopped at the home of a Mrs. Warren. The parties alighted, and deceased went into the house and had some conversation with Mrs. Warren about preparing supper for the three; but on account of the lateness of the hour she refused. She left the house and went to the gate where the two defendants were and requested them to take the deceased away because of his intoxicated condition, which they succeeded in doing, and the homeward journey was resumed. Johnson rode some little distance in front, while appellant and deceased were in the rear, riding along together. When passing the house of Tony Kerby, deceased called for him, but did not succeed in arousing him. About a mile south of Pittsburg, the road they were traveling led onto the pike, there being a slight sag at the intersection, and defendants testify that at that point the horse which deceased was riding stumbled and fell, throwing him upon the pike, and that he fell on his face. He got up, and appellant inquired of him if he was hurt, receiving the answer: "No, by God! I ain't hurt much, but my face is skinned a little." He got back on his horse, and Johnson expressed astonishment at the horse falling, whereupon deceased cursed and applied vile epithets to him, accusing him, in substance, of furnishing deceased an unsafe horse. The epithets, according to defendant's testimony, continued to be applied to Johnson as the parties traveled the pike for a distance of 150 or 200 feet, when deceased ran his horse in front of Johnson and alighted, grabbed the latter, and pulled him from his horse, causing him to fall with his back on the pike. At that time appellant was in the rear, and by the time he got up even with the parties Johnson had arisen and he and deceased were engaged in a general fight. What then occurred is thus told by the appellant:

"Just as I got off my horse, Johnson says: 'Don't cut me. I ain't got nothing.' And he backed off, and I started to them, and they come around there that way (indicating), and he says: 'Don't cut me. I haven't got nothing.' And I run around them and started to-- Mr. Johnson jumped between me and him, and I says: 'Don't do that. Don't cut that man.' He struck at him with the knife. He struck him kinda in the coat collar there (indicating), and as he struck another lick I shot him."

It is claimed that the deceased fell upon his back about 10 feet from the edge of the pike. During the mêlée the two horses ridden by deceased and Johnson ran off toward London, and after the killing appellant and Johnson got upon the horse ridden by the former, and, leaving deceased as he had fallen, they returned to London, where they surrendered themselves to the sheriff. There were no eyewitnesses to the occurrences at the time of the killing except the two defendants, whose narratives coincide with what we have stated.

The body of the deceased was taken to London by the sheriff, assisted by appellant and others, a short while afterward, and it was found that there were several cuts and bruises on different parts of his face, and a hole where the bullet had entered the corner of his mouth in the edge of his mustache which ranged upward at an angle of about 45 degrees. He had some cut places on his coat and vest, and one of his wrists was bruised; but whether that bruise was made at the time of the fight or in handling the body afterward is not made clear.

A witness for the commonwealth testified to the effect that she heard the epithets claimed by defendants to have been spoken by deceased at the time of the shooting; but this witness saw no part of the difficulty, recognized no one's voice, and did not know who spoke the words to which she testified.

Robert Matthews, introduced by the commonwealth, testified that at a short distance from the scene of the killing he and three others saw three men pass along the road and heard a voice say, "Wait until we get on the pike and we will--" He says that for some reason he did not hear the sentence completed. Elmer Johnson lived near the place of the killing; he had been sick, but was convalescing, and from his bed near a window he heard some one say: "Hold him, Jeff! Hold him!" And immediately a shot was fired in the direction of the place where deceased was killed. Immediately witness heard horses running down the pike toward London.

Mrs. Moore was in her residence near the scene and heard bad language and heard some one say, "Oh, Lord!" and as soon as witness took two steps into her room a pistol fired, after which she heard horses running upon the pike.

Claude Miller testified that he was sitting on the railroad track about 250 feet from the place of the killing, and that three men passed along the road, one about 30 or 40 feet ahead of the other two; that when they arrived at about the place of the killing they appeared to stop, and he heard some one say "Hold him, Jeff! hold him!" and...