Ross v. Commonwealth

• Decision Date: 30 January 1900
• Citation: 55 S.W. 4
• Parties: ROSS v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

55 S.W. 4

ROSS v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

January 30, 1900

Appeal from circuit court, Livingston county.

"Not to be officially reported."

Reuben Ross was convicted of manslaughter under an indictment for murder, and he appeals. Reversed.

J. W Bush, J. K. Hendrick, J. C. Hodge, and C. W. Watts, for appellant.

HOBSON J.

Appellant Reuben Ross, and his brother, Tom Ross, were jointly indicted in the Livingston circuit court for the murder of Walter Hooks. Appellant was tried separately. The jury returned a verdict finding him guilty of manslaughter, and fixing his punishment at 21 years in the penitentiary; and, his motion for a new trial having been overruled, and judgment entered upon the verdict, he prosecutes this appeal.

It appears from the proof that at the time the offense was committed appellant was 17 years old; that he and Hooks were going to the same school, and for some time had been on bad terms; that Hooks was 21 or 22 years of age, and weighed 190 pounds, while appellant weighed only 125; that on the day of the homicide,--January 7, 1898,--at recess of the school Hooks was insulting to appellant, and was also insulting to him that afternoon when school closed; that one of the young ladies in the school that evening requested appellant to meet her at the post office, Hooks being near by, making a face at appellant at the time, and then going up to the post office, though his home lay in another direction; that, when appellant approached the post office, Hooks was standing at the door, and appellant's brother, Tom, about 30 feet off, near a photographer's tent. Tom Ross was about the age of Hooks, but only about three-fourths his size. The proof is conflicting as to some things that were said, but the weight of the evidence establishes the following facts as to what then followed: Appellant, seeing Hooks at the post-office door, said to his brother, Tom, that Hooks had been imposing on him all day. Tom asked him if he had a knife. Appellant said, "Yes." Tom said, "Give it to me." Appellant said, "No, I will keep it myself." Tom then went over to where Hooks was, he having walked towards them while they were talking, and said to Hooks: "What are you imposing on that boy for? Why don't you impose on somebody of your age?" Hooks denied imposing on the boy, but appellant, who came up, said he had, and, after some other words passed, both Hooks and Tom, about the same time, began fighting. After some blows, Hooks got Tom by the throat, and was choking him until he was getting red in the face and short of breath. Appellant then slashed away at Hooks' head with his knife. He says simply for the purpose of making Hooks break his hold on his brother's throat, and not for the purpose of seriously hurting him. But the knife accidentally struck Hooks in the temple, where, it appears from the testimony, there is a spot about as large as a dime at which a knife blade may penetrate the brain. The blood spurted out from the wound, and Hooks died in a few minutes. It is insisted for appellant that, as there was testimony showing that the death of Hooks was accidental, and not reasonably to be expected from the blow of appellant, he was entitled to an instruction as to involuntary manslaughter. The knife was about 2 1/2 inches long. A stab from it was necessarily dangerous, and would often be deadly. It was a dangerous weapon. Involuntary manslaughter is defined as: "The killing of another person in doing some unlawful act not amounting to a felony, nor likely to endanger life, but without an intention to kill." Rob. Cr. Law. § 198. Although there was no intention on the part of appellant to kill Hooks, his act was likely to endanger life, and the instruction as to involuntary manslaughter was properly refused.

Appellant also complains of the errors of the court in the admission and rejection of evidence. These will now be noticed. There was proof by the commonwealth that appellant, while talking to his brother, near the tent, drew his knife out of his pocket. He offered to state that while he was talking to his brother Hooks was eyeing them, and finally began walking towards them, keeping his eyes on him, and that he thought Hooks was about to jump on him, and for this reason drew his knife. This matter was so nearly connected with the fight as to form part of the res gestæ, and, the commonwealth having proved that appellant drew his knife at this time, he should have been allowed to state why he drew it, because, without this explanation, the jury may have inferred that he drew it for the purpose of making an attack upon Hooks. As soon as appellant saw the blood spurt from Hooks' temple, he ran off to his father's store. Hooks and Tom Ross continued to struggle for a few moments, when Hooks fell to the ground. The first person to come up to them was William Wells. Appellant offered to prove by Wells that he said to Tom Ross when he came up, "You have killed him," and Tom replied, "I have not hurt him; I only struck him with my fist." This was...