Sizemore v. Commonwealth

• Decision Date: 21 September 1920
• Citation: 189 Ky. 46,224 S.W. 637
• Parties: SIZEMORE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

224 S.W. 637

189 Ky. 46

SIZEMORE v. COMMONWEALTH.

Court of Appeals of Kentucky.

September 21, 1920

Appeal from Circuit Court, Laurel County.

Jeff Sizemore was convicted of voluntary manslaughter, and appeals. Affirmed.

Jas. D Black, of Barbourville, and J. K. Lewis and B. F. Johnson both of London, for appellant.

Chas I. Dawson, Atty. Gen., and W. P. Hughes, of Frankfort, for the Commonwealth.

HURT J.

The appellant, Jeff Sizemore, was indicted for the crime of murder, and upon trial was found guilty of voluntary manslaughter, and his penalty fixed at imprisonment for the period of 21 years, by the verdict of the jury. His motion to set aside the verdict and to grant him a new trial was overruled, and judgment rendered in accordance with the verdict, and from the judgment he has appealed.

The chief facts constituting and connected with the crime of which the appellant was adjudged guilty are as follows:

No actual trouble or cause of animosity had occurred or existed between him and the victim, but some trivial cause of animosity was supposed to have existed between the accused and a son-in-law, of the same name, who was a brother-in-law of Joseph Hibbard, the victim of the crime. According to the evidence given by Napier, another son-in-law of the accused a few days before the homicide, Hibbard had threatened to give the accused some personal chastisement, and had requested Napier to convey the threat to the accused; but Napier had failed to comply with the request of deceased. According to the uncorroborated statements of the accused, about a week preceding the tragedy, he was at his barn, near a road along which the deceased was traveling, and when the deceased saw the accused he thrust his hand in his pocket and applied an opprobrious epithet to him. The accused went into his barn, and the deceased passed on, and a few days preceding the homicide the deceased crossed over the fences and premises of the accused, in the neighborhood of the latter's dwelling, with a gun upon his shoulder, and, as the accused thought, in a menacing and threatening manner. Some days preceding the tragedy, the accused visited the judge of the county court, as he says, with the intention of procuring a warrant to issue against his son-in-law, Sizemore, and the deceased, for the purpose of requiring them to give sureties to keep the peace; but the judge was of the opinion that the issual of a warrant would not remedy the trouble, and so advised the accused, promising to give assistance in some other way, and a warrant was not issued.

Thereafter, upon a morning, about 8 o'clock, the accused was at a small crib, which stood about 12 or 15 feet from the road, and wherein he stored corn and fodder, when the deceased passed along the road upon foot. The direction in which the deceased was going placed his left side toward the crib, which had a door which opened in the direction of the road, and just as deceased arrived at a point in the road opposite to the crib the accused fired upon him with one barrel of a double-barreled shotgun, and directly thereafter discharged the other barrel at him. Directly thereafter the accused came from the direction of the crib with a shotgun in his hands, and approaching his son-in-law, Napier, who was in the road, near to the dwelling of the accused, requested him to convey word to his son-in-law, Sizemore, to come and remove the body of Hibbard, and at the same time remarking that "he [Hibbard] would quit patting his pistol," or "fellows would learn to quit patting their pistols." A few minutes before the shots were heard the deceased was seen in the road, about 60 to 75 yards from the crib, walking in the road in that direction, but no one saw him at the time of the shooting except the accused; but John Watkins, who was 400 yards away, saw the smoke from the first shot, and saw the accused at the time he fired the second shot. Just opposite the door of the crib there was blood upon the ground, and 15 to 20 feet further along the road lay the hat of deceased, perforated by a bullet hole. A few steps further on, and in the direction he was going, and on the opposite side of the road from the crib, the dead body of the deceased was lying upon its face. Quite a number of buckshot had penetrated the left side of the body, and one the left side of the head, corresponding to the bullet hole in the hat. Two wounds were in the front of the abdomen, below the navel, and from appearances the deceased may have been standing with his front to the accused at the time the shots were fired which made the two wounds. Another wound was in the right corner of the right eye. A pistol was found in the right coat pocket of deceased and was lying with its top down.

The accused claimed that he was at his crib, and engaged in shucking corn in front of the door and just against the doorstep, with his shotgun by his side, which he had with him, out of fear of violence at the hands of his son-in-law, from whom he was estranged, and the deceased, and that, when the deceased arrived opposite to the crib, he thrust his hand into his coat pocket, applied a foul name, accompanied by an oath, to the accused, and that he (accused), fearing for his safety, immediately fired upon the deceased, who fell to the ground upon his left hand, but at the same time was attempting to draw his pistol from his right coat pocket, when he discharged the other barrel of his gun at him. Pieces of paper apparently used as wadding in the loading of a gun were scattered between the crib and the point in the road where the blood spots were upon the ground. The point in the road where the blood was, and where the body lay, was 50 or 60 feet from the crib.

No criticism is made of the instructions given to the jury, nor of any rulings of the court upon the admissibility of evidence heard or offered, and it is not questioned but what the evidence was amply sufficient to justify and support the verdict of the jury.

A. (1) A ground urged for a reversal of the judgment is that the court, over the objection of the accused, permitted the jury to take to its room, when it retired to consult of its verdict, the clothing which the deceased was wearing at the time he was slain, and (2) that in the room, where no one was present except the members of the jury, and while they were consulting as to its verdict, the coat of deceased was placed upon one of the jurors, and from the bullet holes in it, with relation to the body of the juror, it arrived at the conclusion that the wounds upon the front of the person of deceased were caused by bullets which passed through his body from the left side, and were not discharged at him from in front of him, and the jury thus received and considered evidence out of the presence of the accused. These objections to the fairness of the trial are, however, found to be unavailing. Section 248, Cr. Code Prac., provides:

"Upon retiring for deliberation, the jury may take with them all papers, and other things, which have been received as evidence in the cause."

This statute has been construed as vesting in the sound discretion of the trial court the right to determine whether papers, or other things, which have been received in evidence upon the trial, should be permitted to be taken by the jury upon retiring for deliberation. The clothing, which deceased was wearing at the time he was shot, and thereby killed, after it had been proven that it was in the same condition as it was when the lifeless body was found, immediately following the receipt of the mortal wounds, was properly admitted in the evidence, to throw any light which it might upon the cause and manner of the death. McCandless v. Commonwealth, 170 Ky. 308, 185 S.W. 1100. There is no suggestion or intimation that there was any change of the condition of the clothing in any way from the condition it was in immediately following the homicide. It is not possible to see how the permission of the jury to take it to its rooms, when retiring for deliberation, was an abuse of discretion on the part of the court. Taylor v. Commonwealth, 92 S.W. 292, 28 Ky. Law Rep. 1348; Carney v. Commonwealth, 181 Ky. 443, 205 S.W. 408.

B. The alleged reception by the jury of evidence out of the presence of the accused, by the use made of the clothing of deceased is attempted to be shown upon the motion for a new trial by...