Pence v. Commonwealth

• Decision Date: 14 June 1899
• Citation: 51 S.W. 801
• Parties: PENCE v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

51 S.W. 801

PENCE v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

June 14, 1899

Appeal from circuit court, Madison county.

"Not to be officially reported."

Alex. Pence was convicted of the offense of manslaughter, and he appeals. Affirmed.

R. H Crooke, W. B. Smith, and Lewis Walker, for appellant.

W. S Taylor, for the Commonwealth.

HOBSON J.

Appellant was indicted in the Madison circuit court for the murder of James Smith, and was convicted of manslaughter, his punishment being fixed at 10 years in the penitentiary. Appellant is 60 years old; his wife 17. They have been married 4 or 5 years. The deceased, James Smith, was about 24 years of age, and the appellant suspected him of improper relations with his wife. He testified that on the day his wife's sister died--November 20, 1897--she called him to her, sending everybody else out of the room, a few minutes before she died, and told him that he must keep James Smith away from his house, or he would cause a separation between him and his wife. He stated that, acting upon this information from his sister-in-law, he observed his wife and Smith that night, and saw enough to confirm what she had said; so he told Smith that he must not come to his house any more, and Smith promised to stay away. He also stated that he saw Smith going to his house after this, but he would leave before appellant got to the house. Appellant lived in Madison county, on the Kentucky Central Railroad, about one-half mile from Ford, and had a saloon on the Madison side of the river near Ford, about 600 yards from his residence, and on the other side of the tunnel from it. He stated that on February 23, 1898, about 2 o'clock in the afternoon, he started to go to Ford, to take his laundry, and when he got to the bridge he found he had forgotten it. James Smith and another were standing on a porch on the opposite side of the railroad, and when he got back from the saloon with the laundry he noticed that Smith was gone, and, looking up the railroad, he saw him going out of the tunnel at the far end. He then watched Smith, and, when he saw him stop at his house, went back to the saloon, left his laundry, put his pistol in his pocket, and started home, he says, to investigate. When he got there, he found the kitchen door locked. He then went around to the front door, and went in finding his wife, her brother, Charles Casey, James Smith and Sadie Green, a young lady 16 years old, in the room together. He said, "Good evening," and then asked his wife to go upstairs, and look for his watch key. Smith was sitting near the center of the room, and as Mrs. Pence went out to look for the key appellant followed her to the door, which he closed behind her, and, being then at the back of Smith, who was not noticing what he was doing, he turned and struck Smith on the head, with the butt of the pistol, two blows, and as Smith started out he followed him, and pushed him, telling him to leave his premises, and stay away. Charles Casey then took Smith's hat and gloves to him, and he went home, bleeding very profusely, and died of his wounds about 11 o'clock that night. When he struck Smith the first blow, Smith raised and threw his hand back. He then struck him a harder blow, which seemed to daze him, and he started towards the door. Smith had a pistol on his person, but did not draw it, or show it in any way. Appellant stated that he did not intend to kill Smith, but only to bruise him, and make him stay away from his house. On these facts the court instructed the jury that if appellant willfully assaulted and beat Smith with the pistol, thus killing him, and that the beating was with such violence and to such a degree as to be evidently dangerous to life, they should find him guilty of murder, if the beating was with malice aforethought, or of manslaughter if it was done in sudden heat and passion, without previous malice. He also instructed them that if the heating was not done with such...