Oldham v. Commonwealth

• Decision Date: 21 September 1900
• Citation: 58 S.W. 418
• Parties: OLDHAM v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

58 S.W. 418

OLDHAM v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

September 21, 1900

Appeal from circuit court, Christian county.

"Not to be officially reported."

Dutch Oldham was convicted of the offense of maliciously shooting and wounding another with intent to kill, and he appeals. Reversed. Landes & Allensworth, for appellant.

Robert J. Breckinridge, for appellee.

BURNAM J.

The appellant was indicted by the grand jury in Christian county for maliciously shooting and wounding Mack Tandy with intent to kill him, but of which wound he did not die. A trial before a petit jury resulted in a verdict and judgment sentencing him to the penitentiary for a period of 2 1/2 years, which we are asked to reverse on the ground that the court permitted the commonwealth, over the objections of the defendant, to introduce testimony in chief after it had closed its testimony, and after the defendant had introduced all his proof, and because of improper language by the commonwealth's attorney in the presence of the jury during the trial. The testimony of the witnesses introduced in chief by the commonwealth is to the effect that Tandy, the party who was shot, began the difficulty several days before the shooting by accusing appellant of stealing, riding, and breaking his saddle, and demanding to be paid therefor, at the same time cursing and threatening to kill appellant. On this occasion appellant admitted having ridden the saddle but said it was without evil intention, and denied that he had broken it, but said that he was willing to pay for it. This explanation, however, was not satisfactory to Tandy. A few days afterwards they again met on the porch at the house of a common acquaintance, where a dance was in progress, when Tandy approached appellant with a knife in his hand, accusing him of breaking his saddle, and demanding payment therefor with threats of violence, and a difficulty was only prevented at that time by the interference of bystanders, who separated them. Appellant then went on the inside of the house, and about two hours thereafter Tandy followed him into the house and again approached him, demanding to know what he intended to do about the saddle, and informing him "that he would have to pay for it then or go to war." The appellant responded that he thought the matter was settled; that he was willing to pay for it, and that that was all he could do about it. Tandy thereupon replied that it was not settled and invited appellant out of doors with him, backing sideways towards the door with his hand in his hip...