Nichols v. Commonwealth
| Citation | 245 S.W. 518,196 Ky. 706 |
| Parties | NICHOLS v. COMMONWEALTH. |
| Decision Date | 08 December 1922 |
| Court | Court of Appeals of Kentucky |
Appeal from Circuit Court, Bell County.
Clarence Nichols was convicted of manslaughter, and he appeals. Affirmed.
John Howard, of Middlesboro, for appellant.
Chas I. Dawson, Atty. Gen., and Thos. B. McGregor, Asst. Atty Gen., for the Commonwealth.
In May 1921, the appellant shot and killed Tom Jones, in Jeff Etter's poolroom in Middlesboro. He was indicted for murder, and, after two juries had failed to agree, was convicted upon the third trial of manslaughter, and his punishment fixed at five years' confinement in the penitentiary. His chief ground for reversal of the judgment is that the verdict is flagrantly against the evidence.
The witnesses agree that a short time before the difficulty Jones had been employed in the poolroom to take the position vacated by Joe Williams, a one-legged man, who with William Davis was playing pool on the table nearest the front door when the difficulty occurred; that defendant was standing near the next pool table back from the front door, and decedent was standing at a tool box in the corner of the room near the front door, retipping cues, with the table upon which the game was in progress between them, when defendant said something to decedent about his job. Decedent replied that defendant had better get out and get a job, and the latter said that, if he did, he would not take a one-legged man's job. Thereupon decedent, with a cue in one hand and a hammer in the other, started toward defendant saying that he would beat his brains out, and raising the hammer as though he meant to strike defendant with it.
The witnesses further agree that defendant, standing his ground shot at decedent four times with a pistol; one shot entering the abdomen from the front and piercing the liver, two shots entering decedent's body from the rear, and the fourth missing him. The witnesses are unable to state which was the first shot that struck decedent, and they do not agree as to the distance the parties were from each other when the shooting began. Defendant states that at the time decedent was within 5 feet of him, and the other witnesses fix the distance between them at from 7 feet to 15 or 20 steps.
The witness for the commonwealth, who stated that the parties were 15 or 20 steps apart when the trouble began, states that defendant began shooting as soon as decedent started in his direction, and when he had gone but a step or two from the tool box. In a dying declaration, admitted over the objection and exception of the defendant, decedent declared that defendant "shot him, but he was not thinking about him shooting him," and "that he was standing at the box, putting on cue tips, when they shot him, and he was not thinking about them shooting him." If this declaration was competent, as we think it was, it at least tends to prove that the defendant did not shoot in his necessary self-defense, and when it is remembered that two of the three shots struck decedent in the rear and when his back must have been turned toward the defendant and that one of the witnesses stated the pool table was between the parties when the shooting began, we feel sure that the evidence was such as warranted the jury in believing, as they did, that the defendant was not justified in shooting and killing the decedent upon the ground of self-defense, and...
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Perkins v. Commonwealth
...for consideration, as we may not look to a motion for a new trial for facts that must be shown by a bill of exceptions. Nichols v. Commonwealth, 196 Ky. 706, 245 S.W. 518; Brewer v. Commonwealth, 188 Ky. 76, 221 S.W. 224; Mays v. Commonwealth, 200 Ky. 678, 255 S.W. Counsel for appellant, wi......
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McCurry v. Commonwealth
... ... actual or apparent, as appears to him in the exercise of a ... reasonable discretion to be necessary. Two comparatively ... recent cases from this court so holding, in which many others ... are referred to, are Sizemore v. Commonwealth, 158 ... Ky. 492, 165 S.W. 669, and Nichols v. Commonwealth, ... 196 Ky. 706, 245 S.W. 518. Indeed, the right of the defendant ... to judge of the danger, as it appears to him in the exercise ... of a reasonable discretion, is so well settled both in this ... and other courts as to require no extension of this opinion ... or further ... ...
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Perkins v. Commonwealth
... ... which exception is taken. When the bill of exceptions does ... not contain an argument objected to, nothing is before this ... court for consideration, as we may not look to a motion for a ... new trial for facts that must be shown by a bill of ... exceptions. Nichols v. Commonwealth, 196 Ky. 706, ... 245 S.W. 518; Brewer v. Commonwealth, 188 Ky. 76, ... 221 S.W. 224; Mays v. Commonwealth, 200 Ky. 678, 255 ... S.W. 257 ... Counsel ... for appellant, with fervid eloquence, condemn the deceased ... for his conduct toward appellant in ... ...
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McCurry v. Commonwealth
... ... Two comparatively recent cases from this court so holding, in which many others are referred to, are Sizemore v. Commonwealth, 158 Ky. 492, and Nichols v. Commonwealth, 196 Ky. 706. Indeed the right of the defendant to judge of the danger, as it appears to him in the exercise of a reasonable discretion, is so well settled both in this and other courts as to require no extension of this opinion or further citation of cases to support it. It is ... ...