Newsome v. Commonwealth

• Court: Kentucky Court of Appeals
• Writing for the Court: BRATCHER, J.
• Citation: Newsome v. Commonwealth, 240 Ky. 333, 42 S.W.2d 306 (Ky. Ct. App. 1931)
• Decision Date: 02 October 1931
• Parties: NEWSOME v. COMMONWEALTH.

42 S.W.2d 306

240 Ky. 333

NEWSOME v. COMMONWEALTH.

Court of Appeals of Kentucky

October 2, 1931

Appeal from Circuit Court, Letcher County.

Frank Newsome was convicted of homicide, and he appeals.

Affirmed.

E. J Picklesimer, of Pikeville, for appellant.

J. W Cammack, Atty. Gen., and Basil P. Cooper, of Lebanon, for the Commonwealth.

BRATCHER J.

The appellants Frank Newsome, Tolby Newsome, and Noah Newsome were jointly indicted in the Pike circuit court for the murder of Kenis Mitchell. Tolby Newsome was tried and found guilty and his punishment fixed at two years in the penitentiary. Upon appeal this judgment was affirmed December 5, 1930. Newsome v. Commonwealth, 236 Ky. 345, 33 S.W.2d 36.

On March 30, 1931, Frank Newsome was brought to trial on this indictment and the jury found him guilty and fixed his punishment at five years in the penitentiary. Judgment was rendered on that verdict, and he has appealed. He assigns as his only ground for a reversal of this judgment that the court erred in overruling his motion for a peremptory instruction to find him not guilty. This complaint is based primarily on the fact that Tolby Newsome had admitted firing the shot that killed Kenis Mitchell. The indictment is set out in the case of Newsome v. Commonwealth, supra, and it is unnecessary to insert it in this opinion, but suffice to say it charges Frank Newsome and Tolby Newsome with the murder of Kenis Mitchell and charges Noah Newsome as aider and abettor. The sufficiency of the indictment was before the court in the above-styled case, and it was determined that it fully met the requirements of the law. The facts in this case are practically the same as in the trial of Tolby Newsome. The evidence of the appellant, Frank Newsome, differs in no material way in this trial from his evidence in the trial of his brother Tolby. Noah Newsome and Tolby Newsome testified in this trial as in the defense of their brother, giving evidence substantially the same as in that trial, the record of which was by proper motion made part of this appeal. Tolby Newsome admitted that he fired the shot that killed Kenis Mitchell and denies that Frank fired a shot at Mitchell. This is also the evidence of the appellant and is corroborated by the evidence of the other brother. It is admitted upon this trial that at the time Kenis Mitchell was killed that the appellant was present. Frank Newsome was armed with a 32-20 pistol. Tolby Newsome was armed with a 41 Colts. According to the testimony of these brothers, they were on their way from Letcher county to their mother's home in Pike county. They overtook the deceased, and upon their immediate approach, he began to work at a pistol under the bib of his overalls, and when Frank Newsome approached within ten or twelve steps of him, Frank, being in front of the others, turned quickly and said, "Oh yes, God damn you, I've got all of you," and attempted to draw his pistol from the bib of his overalls. Frank Newsome, beating him to the draw, trained his pistol upon the deceased and commanded him to throw up his hands, which he did. Tolby Newsome, by that time, was up with the two disputants and told his brother Frank not to shoot him and upon that the deceased asked Frank Newsome not to shoot him. This little difficulty seemed to be quelled for a few minutes and the Newsome boys started to leave. As Frank Newsome stepped down a little embankment with his side or back towards him, Mitchell again proceeded to draw his pistol, whereupon Tolby Newsome fired two shots which took the life of Kenis Mitchell. That is a brief résumé of the evidence, and we might say all the evidence, as to the killing. There is some evidence of threats, and some as to bad feeling between these parties not material in disposing of this single question.

Since the first trial, the body of Kenis Mitchell has been exhumed and there was found in his body two bullets. One bullet corresponded in size to that fired from a 41 Colts pistol and the other bullet, a smaller one, corresponding to that fired by a 32-20 pistol. These were the caliber guns carried by Tolby Newsome and Frank Newsome. This exhumation was made by Dr. W. L. Stumbo, a physician and surgeon, who was assisted by G. D. Ryan, an undertaker. Both of these witnesses testified as to the size of the bullets extracted from the body. The evidence concerning these bullets is the only evidence in this case materially different from that in the trial of Tolby Newsome. There is no direct evidence that Frank Newsome fired a...