Newsome v. Commonwealth

• Court: Kentucky Court of Appeals
• Writing for the Court: GRIGSBY, J.
• Citation: Newsome v. Commonwealth, 236 Ky. 344, 33 S.W.2d 36 (Ky. Ct. App. 1930)
• Decision Date: 05 December 1930
• Parties: NEWSOME v. COMMONWEALTH.

33 S.W.2d 36

236 Ky. 344

NEWSOME v. COMMONWEALTH.

Court of Appeals of Kentucky

December 5, 1930

Appeal from Circuit Court, Pike County.

Tolby Newsome was convicted of manslaughter, and he appeals.

Affirmed.

E. J Picklesimer, of Pikeville, for appellant.

J. W Cammack, Atty. Gen., and Howard Smith Gentry, of Frankfort for the Commonwealth.

GRIGSBY J.

The appellant, Tolby Newsome, Noah Newsome, and Frank Newsome were jointly indicted by the grand jury in Pike county for the crime of willful murder. The appellant Tolby Newsome alone being on trial before a petit jury in the Pike circuit court was found guilty of manslaughter and his punishment fixed at two years in the state penitentiary. In order to reverse a judgment entered in accordance with the verdict of the jury appellant prosecutes this appeal. The first error alleged by appellant is that a demurrer to the indictment should have been sustained. The indictment is as follows:

"The grand jury of the County of Pike in the name and by the authority of the Commonwealth of Kentucky, accuse Tolby Newsome, Noah Newsome, and Frank Newsome of the crime of wilful murder committed in manner and form as follows:

The said Tolby Newsome, Noah Newsome and Frank Newsome in the said county of Pike, on the 27 day of February 1930, before the finding of this indictment, did unlawfully, wilfully, maliciously and feloniously of their malice aforethought kill, slay and murder Kenis Mitchell by the said Tolby Newsome and Frank Newsome shooting and wounding the said Mitchell in, upon the body, arms, limbs and person of him, the said Kenis Mitchell, with guns and pistols, deadly weapons, loaded with powder and lead balls or other hard substances, the exact manner whereof is unknown to the grand jurors, so that the said Mitchell did then and there die, and the said Noah Newsome was then and there present and near enough to, and did aid, assist, abet, counsel and advise the said Tolby Newsome and Frank Newsome to so kill, slay and murder the said Mitchell as aforesaid, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the Commonwealth of Kentucky."

It is argued by appellant that the indictment is defective because it charges both appellant Tolby Newsome and Frank Newsome with the actual shooting and killing of Kenis Mitchell, and therefore alleges a physical impossibility. We cannot agree with this contention. In our opinion the indictment clearly charges the appellant with the crime of murder, and while it is true that Frank Newsome is also charged with the shooting and wounding, the indictment further states "that the exact manner whereof is unknown to the grand jury," and we fail to see wherein this indictment is defective. We are of the opinion that the indictment charged but one offense, is in no way ambiguous, and fully meets the requirements of the Criminal Code of Practice, §§ 118-137. Thompson v. Commonwealth, 1 Metc. (58 Ky.) 13; Hudson v. Commonwealth, 204 Ky. 480, 264 S.W. 1067.

It is next contended by appellant that the verdict is not supported by the evidence. The testimony of the witnesses show that appellant, with his two brothers, Noah Newsome and Frank Newsome, were on their way from Letcher county, where appellant resided, to the home of their mother, who resided in Pike county. They had ridden a part of the way, but at the time of the homicide they were walking. In passing through a field along Robinson creek they overtook the deceased, Kenis Mitchell. The appellant and his two brothers, Noah Newsome and Frank Newsome, testified that as they approached deceased he had his back to them and they saw his arm move as though he had something in his hand. When they arrived within a few feet, deceased turned upon them. The appellant himself gives this version of the shooting:

"We got up something like five steps of him any way and he looked back over his shoulder that way and got up in five feet of him, Frank was in front of me, I don't know how far, and Noah behind me a few steps and I was right at Frank's heels I was outwalking him a little and when he looked back over his shoulder he rammed his hands under his overalls and come that way and says 'Oh Yes, God Dam you I have got all of you.' Frank had his gun in his coat pocket and when he done this as he wheeled Frank slapped his hands in his coat pocket and wheeled and threw his gun on him that way and says 'God Dam you stop' and he jerked his hand out that way and I said don't shoot him Frank and he says no don't shoot me, I says let's go on about our business and Frank went to turn off and dropped his gun back I don't know whether he put it in his pocket or down to his side or what he done and we went to start off to start up the road he jumped up on the side of the bank and the road was right by the side of him, he was standing by the road and Frank went to step up the road by his feet and he dived after his gun that way again I shot him and he grabbed the gun with his left hand out of the holster sticking around in front and when he grabbed it with his left hand and jerked that way and it under his overall bib and coming out and I shot him again and snatched his gun and when he first come with his gun I told him to put her back, put her back, something like that two or three times, I don't know how many times and he come on with it and I shot."

Noah Newsome, a brother of appellant, testified that when they approached deceased that deceased "wheeled back and as he wheeled back he throwed his hands under his overalls and said something or...