Posten v. Commonwealth
| Decision Date | 16 October 1925 |
| Citation | 210 Ky. 594 |
| Parties | Posten v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
1. Criminal Law — Although no Other Witnesses are Present, Jury is Not Bound to Accept Version of Accused Testifying for Himself. — In murder case, although no other witnesses were present at time of killing, jury is not bound to accept version of accused, who testified for himself.
2. Homicide — Evidence Held to Sustain Conviction for Voluntary Manslaughter. — Evidence of circumstances surrounding shooting of deceased held to sustain conviction for voluntary manslaughter.
Appeal from Warren Circuit Court.
GARDNER, OLIVER & DIXON for appellant.
FRANK E. DAUGHERTY, Attorney General, and GARDNER K. BYERS, Assistant Attorney General, for appellee.
Affirming.
On a Tuesday night in August, 1924, between eight and eight-thirty o'clock p.m., in the city of Bowling Green, the appellant and defendant below, Herman Posten, shot and killed Leslie Turner, a colored man, for which he was indicted and charged with murder. Upon his trial he was convicted of voluntary manslaughter and punished by confinement in the penitentiary for a period of twenty-one years. The court overruled his motion for a new trial and from the judgment pronounced on the verdict he prosecutes this appeal and relies for a reversal solely upon the ground that the proof heard upon the trial was insufficient to sustain the verdict and that his motion for a peremptory instruction of acquittal should have been sustained; or, if not, that the verdict is flagrantly against the evidence. It is expressly conceded by his counsel in their brief that in all other respects the trial was free from error.
The appellant is a white man and deceased was porter for a hotel in the city of Bowling Green. Close to the hour of eight o'clock on the fatal evening defendant went to the rented residence of the deceased (who was living alone), for the purpose, as he said, of collecting a debt owed him by the deceased amounting to $40.00. He says that a short time prior thereto deceased borrowed from him $40.00 and agreed to pay within the stipulated time, which had expired, $10.00 for the use of it, and that at the time deceased owed him $50.00. No note or any memorandum of that indebtedness was made and no witness proves it except defendant. Two witnesses saw defendant and deceased at the latter's house until their departure in the latter's automobile about twenty or thirty minutes after defendant's first arrival there. It is not clear whether defendant, during that time, went into the house of Turner, but if he did it was only momentary, since he is shown to have remained outside of the house either on the pavement or on the porch of the residence of deceased until the latter started away in his automobile, which was standing immediately in front of his house; that deceased cranked his machine and got into it in the front of the wheel on the left side and requested the defendant, in substance, to get in and take a seat with him, when defendant said, "No, I will ride on the running board." They had driven on that (Adams) street some two or three hundred feet and had passed over an elevation in the street when four or five shots were heard, and almost immediately the witnesses for the Commonwealth, who testified as above, and a number of others gathered at the scene of the shooting. The automobile, which was driven by the deceased, had run into the yard of the dwelling of another witness for the Commonwealth and had run against an automobile parked in that yard and stopped. Two witnesses, who were on the porch of that residence, saw the shooting and testified that it was done by some one standing on the running board of the machine coming towards the house, but a short distance away. Two other witnesses, who were sitting on the dump of the railroad on the opposite side of the street, corroborated the first two. Deceased was dead, or practically so, and was holding the wheel with his left hand and his right one hanging by his side limp, he having been shot in that arm, from the effects of which it was broken. His feet were on some of the running gear of the automobile, with his head resting upon the wheel. He was shot four times, each of which, except the one in his arm, was in his side or back and produced serious and dangerous wounds. Immediately after his body was lifted out of the automobile, witnesses examined the bottom of the bed and found some empty hulls from defendant's pistol, the crank of the machine and some greasy rags, which were removed, but nothing found under them. Within a very short time the policemen arrived and they critically examined with matches and flashlights the bottom of the automobile and found nothing more than what is above stated, and they positively said that no knife was there. After the lapse of about thirty minutes and after the body of the deceased had been removed out of the automobile and within a short time a great number of people had congregated, the automobile was driven by a colored boy from that place and stopped at the city fire department and the police headquarters. Directly thereafter a fireman, who, according to the testimony, had theretofore driven a taxicab, as was also the business of defendant, testified that he found a long-bladed knife in the automobile lying right next to the clutch or brake, and which of course could easily have been seen by those who examined the same spot immediately after the killing. The knife that the witness claimed to have so found was open, with a keen point, the blade perfectly bright with no blood on it. The Commonwealth also proved by a witness, who is not impeached, that some weeks before the homicide witness had a conversation with defendant at a designated place in the city and that the latter inquired of witness if he had seen the deceased and was informed that deceased had "just passed me (witness), going up town," whereupon defendant said, "I want to see him," and witness asked him "For what purpose?" and received from defendant the answer, "He owes...
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