Slone v. Commonwealth
| Decision Date | 02 December 1930 |
| Citation | 236 Ky. 299,33 S.W.2d 8 |
| Parties | SLONE v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Knott County.
William J. Slone was convicted of voluntary manslaughter, and he appeals.
Reversed with directions.
H. H Smith, of Hindman, for appellant.
J. W Cammack, Atty. Gen., and Howard Smith Gentry, of Frankfort for the Commonwealth.
The appellant, William J. Slone, and his son, Tony Slone, were jointly indicted by the grand jury of Knott county in which they were accused of murdering Talt Jacobs. At his separate trial appellant was convicted of voluntary manslaughter and punished by confinement in the penitentiary for two years. From the verdict and judgment pronounced thereon he prosecutes this appeal, urging by his counsel two major and material errors authorizing a reversing of the judgment, and which are: (1) That the evidence did not guiltily connect appellant with the homicide, and for which reason his motion for a peremptory instruction for acquittal should have been given, but, if mistaken in that, then the verdict is flagrantly against the evidence, and (2) error in the self-defense instruction.
The disposition of error (1) calls for a brief summary of the testimony. The killing occurred on June 15, 1927, in the barn lot of Lige Owens, situated up a branch which was a tributary of Cane creek in Knott county between 10:00 and 11:00 a. m. Appellant resided on the creek not far from the point where the branch ran into it, and conducted a retail store in connection with which was a gristmill operated by him and with which he ground meal for his neighboring customers. Talt Jacobs was a son-in-law of Isom Slone, a relative of appellant, and who resided in the neighborhood near to the residence of Lige Owens, but farther up the branch. On the same morning, but before the killing, a third Mr. Slone brought some corn to appellant's store to be ground into meal, but it was put into the storehouse and not ground because appellant did not then have sufficient gas to run his mill. The customer, Slone, testified as a witness for the commonwealth, and said that while he was at the store of appellant he observed some hogs in a pen nearby, when he remarked that on his way to the store he saw some dead hogs just above Elijah Owens' residence, and on the branch, and that appellant remarked: "I bet they are mine" and said ; that he later got a Winchester shotgun and crossed the creek and started in the direction of the branch, but witness did not state that appellant made any threats of personal harm against the deceased or any one else, and the remarks so attributed to him by the witness were denied by appellant, he stating that he had already procured his shotgun when the witness arrived at his store with the sack of corn with the intention of going up the creek to some mulberry trees for the purpose of killing squirrels. He, furthermore, stated that the only reference to hogs on the occasion testified to by the witness was made after the sack of corn had been deposited in the store and the two had gone out of it, when the customer, Slone, stated that at about dark on the evening before he saw a hog by the side of the road bleeding and it looked like it was dead, and that when he passed it this morning it was dead; whereupon appellant said that it was not his hog "Because when I fed my hogs this morning they were all there," and which he said was the entire conversation about hogs.
When appellant reached the branch and had started up it he saw Isom Slone, the father-in-law of the deceased, the latter, and appellant's son, Tony Slone, standing by the side of a wagon which they were using in removing débris and scattered rails that a recent flood had produced in the branch and in which panels of a washed away rail fence were deposited. The work was being performed by Tony and the deceased under an employment by Owens. Before he reached them Tony and deceased started with the wagon toward the barn lot with the father-in-law of deceased walking. The wagon was stopped near the barn and the three went into one of its stalls where there was a remnant of a keg of whisky, and they proceeded to consume a portion of it, but, according to appellant, Isom Slone, the father-in-law, was already considerably intoxicated and the other two were at least partially so. Appellant also testified that when he appeared near the wagon the father-in-law, Isom Slone, called him a s____ of a b_____ and asked him where he was going, and started towards him, when he took his shotgun off his shoulder and sat the breech end on the ground and stated that he had started up the branch when the deceased said: "You haven't got no business up the branch and you are not going," when appellant said: "I have nothing against you fellows and I am going," which was followed by a statement of deceased that "He would kill me as soon as he could get his gun"; that deceased then started to the place in the branch from whence they had driven the wagon where his coat in which he had his pistol was hung on a sapling or put upon a stump, and while he was gone Isom Slone began to threaten and abuse appellant, who then concluded to return home and started in that direction, followed by Isom Slone and his son, Tony. They had gotten but a short distance when the deceased returned with his pistol and, according to the testimony of both appellant and his son Tony, he attempted to shoot appellant, snapping his pistol two or three times in the attempt, but it did not fire. After such unsuccessful attempts, and while deceased was continuing to snap his pistol, Tony came from behind appellant where he was walking with Isom Slone, the father-in-law of deceased, and shot the latter from the effects of which he died. The above account as to what happened at the immediate time and place of the killing is told in a straightforward manner, and without impairment by cross-examination, by both appellant and his son, Tony.
The commonwealth's witness, Isom Slone, in rendering his account of what occurred at the same time and place, said that on the fatal morning he had gone to Slone's branch to examine some chair timber, and that he was returning from that place about 10 o'clock when he discovered his son-in-law and Tony Slone working at the wagon and they asked him to go to the barn where they had some liquor, to which he at first objected, but was finally persuaded to do so. When they got there they went into the stall of the barn and sat upon some sacks and drank some of the whisky taken from a partially emptied keg or barrel, and while they were sitting there the deceased came up and inquired for Lige Owens, and said some God damn s____ of a b____ had killed his hogs and no man could kill his hogs and live, that the deceased then stated that he had not killed any of appellant's hogs when appellant again said that some s____ of a b____ had done so, and at the same time changed the position of his shotgun but did not point it at any one or threaten to shoot. Some few words passed of an unimportant nature, when the deceased left the stall and appellant ...
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