Saylor v. Commonwealth

• Decision Date: 18 March 1932
• Citation: 243 Ky. 79
• Parties: Saylor v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

243 Ky. 79

Saylor v. Commonwealth.

Court of Appeals of Kentucky.

Decided March 18, 1932.

1. Criminal Law. — Credibility of witnesses, giving conflicting testimony in murder trial as to who was aggressor, was jury question.

2. Criminal Law. — Decision of question on former appeal on substantially same facts is law of case.

3. Criminal Law. — Questions, which were or could have been raised on former appeal, cannot be raised on subsequent appeal, unless expressly reserved.

4. Criminal Law. — Failure to give instruction warranted by evidence did not preclude court from giving such instruction at second trial after reversal of conviction.

Appeal from Bell Circuit Court.

J.G. ROLLINS for appellant.

BAILEY P. WOOTTON, Attorney General, and H. HAMILTON RICE, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE REES.

Affirming.

The appellant, Millard Saylor, tried under an indictment charging him with the willful murder of Earl Calloway, was found guilty of manslaughter and sentenced to serve seven years in the penitentiary. He has had two trials. At the first trial he was convicted of manslaughter and sentenced to serve ten years in the penitentiary, but the judgment was reversed on the ground of newly discovered evidence. Saylor v. Commonwealth, 235 Ky. 478, 31 S.W. (2d) 719. The evidence on the two trials was substantially the same. The facts are fully stated in the opinion on the first appeal, and it will not be necessary to restate them here.

On this appeal it is argued that the judgment should be reversed because (1) the verdict is flagrantly against the evidence, and (2) the court erred in qualifying the self-defense instruction. The facts were amply sufficient to sustain the verdict. If the evidence for the commonwealth is true, the appellant brought on the difficulty which resulted in Earl Calloway's death, and the homicide was unjustifiable. The evidence as to who was the aggressor was in conflict, but the credibility of the witnesses was a question for the jury. Moreover, this question was considered on the former appeal and was decided adversely to appellant's present contention, and the decision then rendered on substantially the same facts is the law of the case.

In addition to the instructions given on the first trial, the court gave instruction No. 5, which is a qualification of the self-defense instruction and renders it inapplicable in the event the jury should believe the appellant and deceased voluntarily entered into the combat with the intention of killing each other. Appellant's objection to this instruction is twofold. He argues that the evidence did not warrant such an instruction but, if in error in this, that the court was precluded by the doctrine of the law of the case from giving it on the second trial when it had not been given on the first trial, since the opinion on the former appeal did not direct the giving of such an instruction.

It is apparent from the record that bad feeling existed between the deceased and members of the Saylor family, including appellant. The latter, at a time when deceased was engaged in conversation with a third person, addressed a provocative remark to deceased and, if the testimony of one witness for the commonwealth is believed, followed it with a vulgar expression which, under the circumstances, was very likely to bring on a difficulty. He was armed with two pistols, and his conduct indicated that he was ready and willing to enter into a combat. The deceased likewise was not loath to be embroiled. The facts are very similar to those in the recently decided case of Pergram v. Commonwealth, 242 Ky. 465, 46 S.W. (2d) 780. In that case the self-defense instruction was qualified in two respects. It was made inapplicable if the defendant and deceased voluntarily entered into the difficulty with the intention on the part of each to kill the other, or if the defendant brought on the difficulty. It was held that both qualifications of the self-defense instruction were warranted. So in the present case there was ample evidence to warrant the giving of instruction No. 5 on the first trial; but since neither it nor any similar instruction was given on that trial, and no complaint having been made of the instructions on the first appeal, and no reference to them having been made in the opinion, was the lower court on the second trial precluded by the rule of the law of the case from giving the instruction although warranted by the evidence?

As applied in this jurisdiction, the law of the case rule precludes a litigant from raising on a subsequent appeal any questions that could have been raised, as well as those that were raised upon a former appeal unless expressly reserved. Barton v. Com., 240 Ky. 786, 43 S.W. (2d) 55; Johnson v. Commonwealth, 225 Ky. 413, 9 S.W. (2d) 53. In Cincinnati, N.O. & T.P. Railway Co. v. Perkins' Administrator, 193 Ky. 207, 235 S.W. 776, 777, the following was quoted with approval from Consolidation Coal Co. v. Moore, 179 Ky. 293, 200 S.W. 458, and stated to be the rule in this jurisdiction:

"That the opinion upon the first appeal is the law of the case, not only with respect (1) to errors relied upon for a reversal on the first appeal and which are mentioned in the first opinion; (2) to errors relied on but not noticed in the opinion; but (3) also as to errors appearing in the first record that might have been but were not then relied upon.. . . This rule applies to all cases where the opinion does not expressly state that a particular point is not passed upon; and an opinion upon a first appeal...