Perkins v. Commonwealth

• Decision Date: 21 December 1928
• Parties: PERKINS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

12 S.W.2d 297

227 Ky. 129

PERKINS v. COMMONWEALTH.

Court of Appeals of Kentucky

December 21, 1928

Appeal from Circuit Court, Magoffin County.

Warrick Perkins was convicted of manslaughter, and he appeals. Affirmed.

Walter R. Prater and H. H. Ramey, both of Salyersville, for appellant.

J. W Cammack, Atty. Gen., and A. F. Byrd, of Lexington, for the Commonwealth.

WILLIS J.

Warrick Perkins shot and killed Charley Collinsworth. He was indicted for murder, convicted of manslaughter, and sentenced to serve 5 years in the reformatory. He has prosecuted an appeal to this court, seeking a reversal of the judgment on several grounds which will be discussed and disposed of as the opinion proceeds.

It is urged that the evidence was not sufficient to support a verdict of conviction, and that a peremptory acquittal should have been directed. The rule is that, if there is any evidence which tends to show the commission by the accused of the crime for which he is on trial, the question of guilt or innocence should be submitted to the jury. Utterback v Commonwealth, 190 Ky. 138, 226 S.W. 1065; Commonwealth v. Stringer, 195 Ky. 717, 243 S.W. 944.

It is also the rule that a verdict on competent evidence must be sustained unless it is so palpably against the proof as to shock the conscience and compel the conclusion that the verdict resulted from passion and prejudice. Section 281 Criminal Code, as amended by the Act of 1910; Brown v Commonwealth (Ky.) 10 S.W.2d 820, decided November 13, 1928. The testimony produced by the commonwealth showed that some misunderstanding, perhaps malice, existed between the appellant and his victim, and a previous contact between the parties shortly before the killing indicated some acrimony on the part of each. The deceased overtook appellant in the public road, and, on very slight provocation, if any, struck appellant once on the shoulders with a horsewhip. Appellant immediately shot six times, fatally wounding Collinsworth. There was testimony tending to show previous threats against Collinsworth, and preparation on the part of the appellant to execute the threats, and it is obviously a case presenting sufficient evidence to require determination by a jury and to sustain the verdict. Indeed, it may be properly remarked that the jury was extremely lenient with the appellant in finding him guilty only of manslaughter. The leniency is doubtless accounted for by the insolent act of the deceased in striking appellant with a horsewhip, thus arousing sudden and hot resentment, and reducing the degree of the crime committed.

It is complained that the court erred in the admission of evidence respecting appellant's conduct on previous occasions. Mrs. Collinsworth and her daughter were permitted to testify that upon one or more occasions the appellant had been at the home of deceased armed and making boastful and menacing remarks. It is argued that the testimony offended the rule of practice which precludes evidence of other and distinct offenses, unless it is needed to establish motive, identity, or the like. Wireman v. Commonwealth, 203 Ky. 57, 261 S.W. 862. The evidence allowed in this case was within the exception to the rule. It was not proof of a separate and distinct offense wholly unrelated to the present charge, but was such conduct as tended to show the attitude of the appellant toward the deceased, furnishing some explanation of his readiness to shoot on mere resentment, when he was in no apparent danger of great bodily harm. The effect of the evidence was to indicate malice and predetermination to injure the deceased. The jury plainly was not prejudiced against appellant, as is shown by the sentence it imposed upon him. It is well settled by the authorities that conduct such as was proven in this...