Scott v. Com.

• Decision Date: 09 September 1893
• Parties: SCOTT v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

23 S.W. 219

94 Ky. 511

SCOTT v. COMMONWEALTH.

Court of Appeals of Kentucky.

September 9, 1893

Appeal from circuit court, Bath county.

Henry Scott was convicted of manslaughter, and appeals. Reversed.

Smoot &amp Godgell, for appellant.

Wm. J Hendrick and C. W. Goodpaster, for the Commonwealth.

LEWIS J.

The evidence in this case-of witnesses present-shows that, about or soon after nightfall, appellant went through the back door into the storehouse of deceased, situated in a village where they both resided, and, without other warning than simply pronouncing the given name of deceased, commenced to fire his pistol at and killed him; so that, although deceased fired also very soon after appellant's first shot, and both continued to fire until as many as seven or more shots were exchanged, there is no ground whatever upon which to base the excuse of self-defense. The jury, however, found a verdict of manslaughter only, fixing punishment at confinement in the penitentiary 16 years.

We perceive no error in instructions to the jury, and the single inquiry left is whether the court erred in permitting read in evidence a letter which appellant, while confined in jail wrote to his wife. Appellant, on being cross-examined as a witness in his own behalf, admitted he wrote the letter, and identified it. But that does not seem to us to legalize the evidence, if not otherwise competent, inasmuch as he was required by the court, over his objection, to answer questions relative to the letter propounded by the commonwealth. He testified on the trial that he committed the homicide in a state of passion and excitement caused by the belief that his wife and deceased were criminally intimate that his suspicion was aroused by their conduct at the railroad depot in Mt. Sterling the day before, where they were together, as he believed, by prearrangement; that after their return home, and on the day of the killing, he sought an interview with deceased at his storehouse, and, as other witnesses also testify, harsh language passed, or rather was used by appellant; that, being harassed with suspicion, he asked his mother, who lived at his house, if she believed his wife was unfaithful, and the affirmative answer to his question, and his mother's statement that about one week previously she had seen his wife and deceased together at night, and under circumstances showing they were guilty caused him to seek deceased, and take his life. In addition to the information given to appellant by his mother, the correctness of which she swore to on the trial, other witnesses testified to conduct, on various occasions, of deceased and appellant's wife, inconsistent with their innocence, and from which the jury was authorized to infer they had been criminally intimate. Although manslaughter is an offense, is an offense, in every case, without legal excuse, still it is the policy of the statute to vary the punishment so as to suit circumstances of aggravation or extenuation, as the case may be; and hence...