Shepperd v. Com.

• Decision Date: 13 March 1959
• Citation: 322 S.W.2d 115
• Parties: James SHEPPERD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 115

322 S.W.2d 115

James SHEPPERD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

March 13, 1959.

Daniel W. Davies, Davies & Hirschfeld, Newport, for appellant.

Jo M. Ferguson, Atty. Gen., David B. Sebree, Asst. Atty. Gen., for appellee.

MONTGOMERY, Chief Justice.

James Shepperd was indicted for the murder of C. M. Jacobs. He was found guilty of voluntary manslaughter. His punishment was fixed at twenty years' confinement in the penitentiary. On appeal, he questions the admissibility of testimony concerning difficulties and quarrels with his wife and other misconduct prior to the killing and the sufficiency of the evidence to sustain the verdict. Appellant claimed the killing was done in self-defense.

Appellant and his wife, Mildred, lived in a small settlement near Butler. The house in which they lived belonged to her father, C. M. Jacobs, who lived about two houses away. Appellant and his wife each had children by prior marriages. Mildred obtained a divorce from appellant shortly after the shooting.

A short while before the shooting, appellant came home from work and began to curse his wife's children and to abuse and threaten her. He had been drinking beer. He testified that his wife had been drinking too. The children were not at home. Mildred left and went to her father's, where she reported that appellant was 'on another one of his rampages.' 'Pounding noises from up home' could be heard at her father's. A call for assistance was made to the sheriff's office from her father's home.

Appellant placed some things, including a shotgun, in his car and departed. He testified that it had been his intention to take up living quarters elsewhere but he had returned home upon discovering that he still had on his working clothes. While he was gone, his father-in-law, carrying a .45-caliber pistol in his right hand, went to appellant's home. He walked through it from front to rear, surveying the damage. As the father-in-law was leaving the house by the rear door, appellant drove up in front of the house. Jacobs walked around toward the front of the house. Appellant was seated behind the steering wheel of his car.

Mildred testified that she could see only her father. She stated that her father said, 'Don't do it, Jimmy,' just as he jumped behind a low cedar tree and raised his arm to shoot. Immediately two shots were fired; one from the shotgun, mortally wounding the father-in-law; and one from the pistol which struck the left rear door of appellant's car.

Appellant testified that the deceased said nothing to him and without provocation raised his arm to fire. While appellant was obtaining his shotgun from the rear seat of the car, a shot was fired. Appellant then fired the shotgun because, he testified, he was in great fear for his life. No one testified to seeing the actions of appellant when he fired.

There is no merit in the contention that the evidence is insufficient to sustain the verdict. The testimony of the deceased's daughter is sufficient on which to base the verdict. When, as here, the evidence is in direct conflict as to whether the killing was done in self-defense, it is within the province of the jury to determine which of the contradictory witnesses to believe, and this Court will not disturb the verdict. Jones v. Commonwealth, Ky., 281 S.W.2d 920; Schull v. Commonwealth, 310 Ky. 319, 220 S.W.2d 842; Shepherd v. Commonwealth, 306 Ky. 121, 206 S.W.2d 485.

The Commonwealth's attorney, in his opening statement, said that the Commonwealth would prove that appellant 'is addicted to and does use intoxicants, and on a great number of occasions he has come into his home while under the influence of liquor and has caused disturbances * * *.' In speaking of an occasion prior to the shooting, he said, '* * * there was an altercation and trouble * * *; that he (apellant) threatened and beat his wife; that he tore from the hinges a door in that house * * *.' Motions to discharge the jury and to admonish the jury were successively made and overruled. Over appellant's objection, and without any admonition from the trial court, the Commonwealth was permitted to introduce testimony in detail to the effect that appellant had come home drunk on several occasions during the six months preceding the killing, had beaten and treated his wife badly, cursed the children, wrecked fixtures and a door in the house, and on one occasion had threatened to kill his wife. It was shown that the deceased had known of this conduct.

It is urged on behalf of appellant that such testimony was irrelevant and highly prejudicial. The purpose of an opening statement is to outline to the jury the nature of the charge against the accused and the law and the evidence upon which counsel will rely to support it. It is improper to make statements which he cannot prove or will not be permitted to introduce. Criminal Code of Practice, Section 220; Turner v. Commonwealth, Ky., 240 S.W.2d 80. The propriety of the trial court's rulings...