Sharp v. Com.
| Citation | 215 S.W.2d 983,308 Ky. 765 |
| Parties | SHARP v. COMMONWEALTH. |
| Decision Date | 14 December 1948 |
| Court | Court of Appeals of Kentucky |
Appeal from Circuit Court, Hardin County; George K. Holbert, Judge.
Owen Sharp was convicted of shooting with intent to kill, and he appeals.
Affirmed.
J. Howard Holbert, of Elizabethtown, and Davis Williams, of Munfordville, for appellant.
A. E Funk, Atty. Gen. and Walter C. Herdman, Asst. Atty. Gen., for appellee.
VAN SANT, Commissioner.
The appeal is from a judgment convicting appellant, and sentencing him to be confined in the state reformatory for a period of two years, on an indictment charging him with maliciously shooting and wounding Jess Rigger with intent to kill.
On the night of the 24th day of December, 1946, appellant attended a dance at a road house in Hardin County. The festivities ended about midnight, and the patrons were leaving, or preparing to leave, the dance hall. Jess Rigger was standing or walking at a place approximately 10 feet from the front door of the hall, and was facing the highway when he was struck in the rear of the head by a bottle. Immediately thereafter someone shot him in the back. He did not see his assailant, and although he knew appellant, he had never had any 'dealings' with him or any trouble with him of any character. All witnesses testified that the victim of the assault peaceably was taking his departure and had had no trouble with anyone. Several witnesses testified that immediately after the shooting occurred, appellant ran up the road and 'put what looked like a gun in his pocket'. The operator of the road house and one of the musicians who played at the dance testified that they saw Sharp throw the bottle which hit Rigger on the head, and that appellant then 'pulled a gun and shot him (Rigger) in the back'. They testified that immediately after shooting the victim appellant ran up the road. Another witness testified he saw appellant with a gun in his hand earlier in the evening. Appellant testified that he did not have a gun in his possession on that evening and introduced witnesses who corroborated his testimony to this effect. Other witnesses placed appellant in a position and place from which it would have been impossible for him to have thrown the bottle or fired the shot which wounded Rigger. There is an entire absence of proof to establish motive, or any other reason, prompting appellant to fire the shot.
About 10 1/2 months previous, to wit: February 7, 1946, at an inquest held in the Larue Circuit Court, appellant was adjudged to be a person of unsound mind. This judgment was never modified, reversed, or set aside; and pursuant thereto appellant was confined in the United States Veterans Facility at Lexington, Kentucky, for a period of 6 months. He then was permitted to return to his home for a trial visit, and was on such a furlough at the time it is alleged that he shot Mr Rigger. Previous to the inquest held in the Larue Circuit Court, appellant served in the United States Navy where he was hospitalized for a mental and nervous disorder.
As grounds for reversal appellant contends that (1) the Court erred in overruling his motion for a peremptory instruction of not guilty, on the ground that at the time of the alleged shooting he was a person of unsound mind; (2) the Court erred in admitting incompetent testimony, and; (3) the Court erred in overruling appellant's motion for a continuance of the trial of the case on account of the absence of Paul Priddy, an eyewitness to the shooting.
On the question of insanity appellant introduced the record of the inquest held on February 7, 1946, and read the deposition of Doctor Louis M. Foltz, a psychiatrist, in Louisville which was taken on the 20th day of November, 1947, approximately two weeks before the trial of the case. Doctor Foltz testified that he examined appellant on September 30, 1947 and that from the history of the case and his examination at that time he concluded appellant was 'mentally sick and insane'. He further stated that he felt definitely the patient would have future trouble; that he was suffering from a mental illness which statistics indicated would last for a period of years; and that 'he certainly would be having difficulty now (November 30, 1947)'. He was asked a hypothetical question (which related in sequence the events commencing with the inquest in the Larue Circuit Court and ending with the shooting for which he was on trial) as to whether appellant, because of unsoundness of mind, was able to judge right from wrong. The first answer he gave to this question was that in his opinion appellant would not be able to judge right...
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