Riley v. Commonwealth
| Citation | 72 S.W.2d 754,255 Ky. 68 |
| Parties | RILEY v. COMMONWEALTH. |
| Decision Date | 15 June 1934 |
| Court | Court of Appeals of Kentucky |
Appeal from Circuit Court, Perry County.
Jerry Riley was convicted of murder, and he appeals.
Affirmed.
J. B Eversole, of Hazard, for appellant.
Bailey P. Wootton, Atty. Gen., and David C. Walls, Asst. Atty. Gen for the Commonwealth.
The appellant, Jerry Riley, and his brother, Robert Riley, were by the grand jury of Perry county jointly indicted for the willful murder of the deceased, George Flanery.
Upon their trial at the February, 1934, term of the Perry circuit court the appellant, Jerry Riley, was found guilty of murder and his punishment fixed at confinement in the state penitentiary for life, and his brother and co-defendant Robert Riley, was found guilty of voluntary manslaughter and his punishment fixed at ten years' imprisonment therein.
Motion and grounds for a new trial were filed, which were considered by the court and sustained as to Robert Riley but overruled as to Jerry Riley, a new trial denied him, and judgment pronounced on the verdict. Hence this appeal.
This tragedy occurred at the home of the codefendant, Robert Riley, in the village of Lothair, Perry county, Ky. at about the dusk hour of an election day in August, 1933. The deceased, George Flanery, and the codefendant Robert Riley had been loafing and drinking together about the town during much of the day, when, about an hour of dusk, Robert Riley was, owing to his much intoxicated condition, helped in going home by his brother, the appellant, Jerry Riley and Corbett Flanery, a brother of the deceased. About an hour later George Flanery, the deceased, who was also, due to his like intoxicated condition, helped by his friend, Bert Mobilini started on his homeward way, which led by the home of Robert Riley, when it appears that his boisterous conduct and drunken and abusive talk and shouting was such as attracted the attention of those whose homes he passed. The Riley boys were on the porch of their home, which was about four feet from the street, and as Flanery passed, Jerry Riley laughed and perhaps made certain gestures which incensed Flanery, as he thought Jerry was making fun of him. So feeling, he stopped after passing the gate a few feet and inquired of Jerry what he meant by his laughing at him. Receiving no reply, and becoming more incensed, he turned and went back, over the protest of his friend, Bert Mobilini, to the Riley gate to right his fancied grievance.
The evidence as to what occurred and who was the aggressor in the quarrel and fight and fatal stabbing which followed is as to many of its material facts directly contradictory and conflicting. According to the proof for the commonwealth as detailed by Bert Mobilini and corroborated by other of its eyewitnesses to the difficulty, Bert and the deceased, George Flanery, were on their way to George's house, when, as they passed nearby Rob Riley's gate, Jerry Riley came out on the porch and laughed at George Flanery, when "George stopped and asked what he was laughing at him fer and Jerry never give him no answer"; that as he got up to the gate, Rob Riley came running off the porch at him and George commenced fighting; that he, the witness, asked them to go back to the house, but "they wouldn't say nary a word but kept on fighting and George tore loose from me and throwed me back out in the road and when I got up George was over inside and George Flanery and Rob Riley was standing up in Rob's yard afighting (near the porch) and Jerry Riley then took his left hand and got hold of a post and leaned out from the porch and cut George Flanery in the side and George, he sunk down, and Rob hit him while he was sunk down and I grabbed a board and started to hit Rob with it and old man Riley and George Friley took the board away from me and told me to not do that, that they would get George out of there without getting him hurt and I told them they wouldn't have, he was already cut." Further, he stated that when Rob Riley grabbed George Flanery at the gate, George went inside where they continued fighting one another with their fists and had moved over by the porch, when Jerry, while standing on the porch, reached out and cut George Flanery with a big "dirk knife" as stated.
Also, Mollie Minniard, an eyewitness, stated that when George turned and went back to the gate, the defendant Rob Riley met him there and "spoke at George and hit him and Rob was pulling on him on the inside trying to pull him in and Bert Mobilini was pulling on him on the ouside trying to pull him out"; that Rob jerked him in; that they were fighting and wrestling around, when Jerry Riley, who was standing on the porch with his hand on the post, swung around and cut George; that she didn't see the knife, but saw him "make the sign and then Rob beat on him again"; that he sunk down and "Rob Riley beat on him again, commenced beating him over the head and then Bert Mobilini picked up a plank and was fixing to hit Robert Riley and Butler Friley and George Friley took it away from him."
Corbett Flanery stated that as he helped Jerry Riley take his brother Robert home about an hour before the fight, Jerry had a "dirk knife" which Robert asked him to let him have, but he refused.
The uncontradicted evidence is to the effect that both the deceased Flanery and Robert Riley were each unarmed and having a drunken fist fight while the appellant, Jerry Riley, when he entered into their drunken fight, is shown to have been sober and armed with a large "dirk knife." Also the undisputed evidence is that the appellant, Jerry Riley, is a small man some thirty-seven years of age, weighing, he testifies, about 118 pounds, as was also his brother, Robert Riley, a small man, while the deceased, George Flanery, was a younger and much larger man, weighing some 170 pounds or more and having a bad reputation for being quarrelsome and violent when drinking.
On the other hand, the evidence for the defendants is, as detailed by Robert Riley and which is substantially the same as the testimony given by the appellant, Jerry Riley, that they were upon this occasion both at Robert Riley's home when they heard George Flanery coming up the street "hollering and cussing"; that he and Bert Mobilini passed their home; that George was drunk; that after they had gotten several yards beyond their gate, Jerry Riley, who was on the porch with him, laughed, when the deceased, Flanery, turned and began cursing him, calling him, Robert, a "God damned son of a bitch"; that he saw Bert Mobilini trying to prevent George from coming back to the house, but that George returned to the gate, when he met him there and tried to persuade him not to come inside, but that George broke loose from him and came on inside and struck him, Robert, in the temple and then in the stomach and knocked him out; also that the later fight between the deceased, Flanery, and Jerry Riley took place after he, George, was knocked out, and that he did not see any part of it.
Jerry Riley's testimony is, as stated, practically the same; that he was not laughing at George or Bert; that George had entered the yard and knocked Robert Riley down and then said to him, "I aim to kill you next," when he had told him he wanted no trouble but that, after knocking Robert out, the deceased advanced on him, striking at him, and that he struck back with a knife, when George turned and walked off; that Bert Mobilini was at the gate with a plank in his hands; that Robert Riley was still on the ground when he cut George Flanery and that he did so because he thought George was going to kill him; that he didn't know whether George was armed or not, but thought he had something in his hand.
Several other eyewitnesses to the difficulty testified for the defendant to practically the same facts, corroborating the testimony of the Rileys.
A motion for a peremptory instruction was at the conclusion of the commonwealth's testimony made by the defendants and again renewed at the close of all the evidence, which was overruled.
Upon this conflicting evidence the jury, under the instructions of the court, found the defendant guilty of murder, when he was thereupon sentenced to life imprisonment. The appellant, Jerry Riley, seeks a reversal of this judgment upon the following grounds:
(1) The court erred in the admission and rejection of evidence.
(2) The court failed to properly instruct the jury upon the law of the case, and gave instructions prejudicial to the substantial rights of appellant.
(3) The verdict of the jury and the judgment of the court is not supported by the evidence, and the punishment inflicted is excessive and flagrantly against the evidence.
(4) The verdict of the jury was procured through passion and prejudice.
Appellant having considered and argued grounds one and three together we will likewise so consider and hereinafter dispose of them and now turn our...
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