Peay v. Commonwealth

• Decision Date: 24 September 1918
• Citation: 181 Ky. 396,205 S.W. 404
• Parties: PEAY v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

205 S.W. 404

181 Ky. 396

PEAY v. COMMONWEALTH.

Court of Appeals of Kentucky.

September 24, 1918

Appeal from Circuit Court, Christian County.

Jim Peay was convicted of voluntary manslaughter, and he appeals. Reversed.

John Feland and C. R. Clark, both of Hopkinsville, for appellant.

Chas H. Morris, Atty. Gen., and Henry F. Turner, Asst. Atty. Gen for the Commonwealth.

THOMAS J.

The grand jury of Christian county returned an indictment against the appellant, Jim Peay, a colored man, charging him with murdering his wife on December 25, 1916. Upon trial under a plea of not guilty, the petit jury returned a verdict convicting him of voluntary manslaughter and fixing his punishment at two years' confinement in the penitentiary.

Various objections to the verdict and judgment are made in the motion for a new trial which the defendant filed; but his counsel in this court rely chiefly and almost exclusively upon the ground that the evidence was insufficient to authorize a conviction, and that the verdict is so flagrantly against the evidence as to show that it was entirely the result of passion and prejudice on the part of the jury. Since we have concluded, from a careful reading of the record, that the first ground relied upon here is well taken, it will be unnecessary to notice others mentioned in the motion for a new trial.

The tragedy resulting in the death of defendant's wife occurred late in the afternoon of December 25, 1916, at the house of defendant's mother in which he and his wife were temporarily living. The deceased was the mother of quite a young baby, and defendant and his mother had returned from a Christmas dinner to which they had been invited by a neighbor; the deceased being unable to attend on account of the extreme youth of her baby. Upon the return from the dinner, the deceased was sitting by a heating stove the top of which was something like two feet from the floor. She had her baby in her arms. Defendant took a seat on the opposite side of the stove, and his mother one just in front of it. Directly thereafter the defendant discovered a pistol on the mantel near by which had been left there by some visiting colored boy, and, knowing that his mother strenuously objected to a loaded pistol being on the premises, he removed it for the purpose of extracting the shells which it contained. While working with the pistol, according to the undisputed proof, its barrel was pointed downward; but the mechanism did not work smoothly, and in an effort to get the shells from it one of them exploded, the ball from which penetrated the breast of the wife, who was sitting on the other side of the stove, inflicting a wound from which she died after lingering some five or six weeks. Defendant immediately sought a telephone and called a physician, after which he placed his wife upon a bed, and did what he could to alleviate her sufferings until the arrival of the physician. He remained there with his wife and mother for a week or more, when according to the proof, with the consent of his wife he went away to procure work; there being nothing in the neighborhood he could do. He first went to the state of Illinois, but was unsuccessful, and then went to Indiana where he obtained a position in the city of Evansville. Shortly after his departure, his wife and child were removed to the home of her mother, located near by, where she remained until her death; the child continuing in the custody of its maternal grandmother. When the wife died, the defendant's mother wrote him that "it would do no good to come home," and that his mother-in-law had taken charge of the baby. Acting upon this, he did not return. Before the death of his...