Parrott v. Commonwealth

Citation47 S.W. 452
PartiesPARROTT v. COMMONWEALTH. [1]
Decision Date19 October 1898
CourtCourt of Appeals of Kentucky

Appeal from circuit court, Taylor county.

"Not to be officially reported."

John T Parrott was convicted of malicious wounding, and appeals. Reversed.

H. S Robinson, for appellant.

W. S Taylor and M. H. Thatcher, for the Commonwealth.

WHITE J.

The appellant, John T. Parrott, was indicted by the grand jury of Taylor county for the offense of malicious wounding, under section 1166, Ky. St. The indictment charges: "The said John T. Parrott, in the said county of Taylor, on the -- day of -- 1898, and before the finding of the indictment herein did unlawfully, willfully, and maliciously strike, beat, bruise, and wound one George W. Craig with a wagon standard or club, a deadly weapon, with the intent to kill the said Craig, but from which wounding the said Craig did not die therefrom." Appellant was tried and convicted, and his punishment fixed at two years in the penitentiary, and after his motions in arrest of judgment and for new trial had been overruled he has appealed.

On the trial the commonwealth proved by the prosecuting witness that while traveling along the public highway at night, without warning, he was struck from behind with a large stick, and was considerably beaten and bruised; that he ran, and got away, and procured a physician, who dressed his wounds. The attorney for the commonwealth, over objection by appellant introduced and had shown to the jury a dogwood club 4 1/2 feet long and 2 inches in diameter, with a knot on it. Witness Craig could not say that the club exhibited was the one with which he was beaten, but said it looked something like it. This occurred on Monday night. The commonwealth then introduced a witness, who testified that on Wednesday after the difficulty, at about 60 yards from where the difficulty is said to have taken place, witness found the dogwood club that was shown to the jury. He carried the stick to town on sacks of corn, and while at town examined the stick, and found something on it that looked like hair or wool. The commonwealth also introduced two physicians,--one who dressed the wounds, and the other who removed stitches. This testimony was that the wounds were from 1 to 3 1/2 inches long, and on the head, and a bruise on one hand. These two witnesses were permitted, over objection by appellant, to state their opinion that the licks were struck from behind, and could not have been made by a person standing in front of Craig. The location and character of the wounds do not appear to have been described. Appellant testified in his own behalf, and admitted having a difficulty with Craig, and detailed the circumstances, and by his statements he resisted an attack, and had only a small stick, about one inch in diameter at the large end. He denied absolutely that the stick exhibited to the jury was the one he used. Appellant was corroborated in his statement of the difficulty by a witness who says he saw it. This witness also denied that the club shown to the jury was the one used by appellant, but said it was about one inch in diameter at the large end. The court gave to the jury six instructions. Appellant objected and excepted to Nos. 1, 2, 4, and 6 as given. Appellant asked, and the court refused to give, instructions X, Y, and Z, to which ruling an exception was reserved. The bill of exceptions shows that one of the attorneys for the prosecution stated in his argument to the jury that there had been an examining trial of appellant, and that on that trial, although he had a right to do so, appellant had not testified, and that the first statement made by appellant about the difficulty was on that trial, when he testified; and then argued to the jury that his story was a fabrication, and should not be believed. To this statement of the attorney appellant excepted, and asked the court to say to the jury that the statements were improper, which the court failed to do. The attorney for the commonwealth, in the concluding argument to the jury, told them that there were only two material facts necessary for them to believe beyond a reasonable doubt in order to convict under instruction No. 1, viz. that the striking was done maliciously, and that it was not in defendant's necessary...

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18 cases
  • State v. Conway
    • United States
    • United States State Supreme Court of Missouri
    • 25 Septiembre 1941
    ...... Revised Statutes of Missouri, 1929. State v. Swisher, 186 Mo. 1; State v. Murray, 126 Mo. 615; State v. Mullins, 101 Mo. 514; Commonwealth. v. Brown, 121 Mass. 69; State v. Shipley, 174. Mo. 512. (2) The court erred in giving its instruction on. circumstantial evidence because it ... examining or preliminary trials and is not waived by the. defendant's subsequently testifying in his own defense. [ Parrott v. Commonwealth, 20 Ky. Law Rep. 761, 47. S.W. 452; Bunckley v. State, 77 Miss. 540, 27 So. 638; Eads v. State, 66 Tex. Cr. 548, 147 S.W. ......
  • State v. Conway, 37517.
    • United States
    • United States State Supreme Court of Missouri
    • 25 Septiembre 1941
    ...trials and is not waived by the defendant's subsequently testifying in his own defense. [Parrott v. Commonwealth, 20 Ky. Law Rep. 761, 47 S.W. 452; Bunckley v. State, 77 Miss. 540, 27 So. 638; Eads v. State, 66 Tex. Cr. 548, 147 S.W. 592; Scroggins v. State, 97 Tex. Cr. 573, 263 S.W. 303; H......
  • State v. Haggard, 10788
    • United States
    • United States State Supreme Court of Idaho
    • 24 Junio 1971
    ...should not permit the prosecuting attorney to comment on the defendant's failure to testify at his preliminary hearing. Parrott v. Commonwealth, 47 S.W. 452 (Ky.1898); Richardson v. State, 33 Tex.Cr.R. 518, 27 S.W. 139 (1894); Wilson v. State, 54 Tex.Cr.R. 505, 113 S.W. 529 (1908). The main......
  • Powers v. Commonwealth
    • United States
    • Court of Appeals of Kentucky
    • 6 Diciembre 1904
    ...... v. Commonwealth, 54 S.W. 946, 21 Ky. Law Rep. 1333;. Rhodes v. Commonwealth, 107 Ky. 354, 54 S.W. 170;. Cook v. Commonwealth, 86 Ky. 663, 7 S.W. 155;. Rankin v. Commonwealth, 82 Ky. 424; Flint v. Commonwealth, 81 Ky. 186, 23 S.W. 346; Parrott v. Commonwealth, 47 S.W. 452, 20 Ky. Law Rep. 761;. Gilbert v. Commonwealth, 51 S.W. 804, 21 Ky. Law. Rep. 544; Redmond v. Commonwealth, 51 S.W. 565, 21. Ky. Law Rep. 331; Johnson v. Commonwealth, 61 S.W. 1005, 22 Ky. Law Rep. 1885; Bennyfield v. Commonwealth, 17 S.W. 271, 13 Ky. Law ......
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