Smith v. Commonwealth

• Decision Date: 27 April 1909
• Citation: 118 S.W. 368,133 Ky. 532
• Parties: SMITH v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

118 S.W. 368

133 Ky. 532

SMITH v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 27, 1909

Appeal from Circuit Court, McCracken County.

"To be officially reported."

Jonas Smith was convicted of patricide, and he appeals. Reversed and remanded.

Jas Campbell, for appellant.

Jas Breathitt, Atty. Gen., and Tom B. McGregor, Asst. Atty. Gen for the Commonwealth.

SETTLE C.J.

The appellant, Jonas Smith, was indicted in the court below for the murder of his father, Amos Smith. He was brought to trial within four days of the return of the indictment, by verdict of the jury declared guilty as charged, and given the death penalty. Of that verdict, the judgment entered thereon, and the refusal of the circuit court to grant him a new trial he complains; hence this appeal.

The facts leading to and connected with the homicide were few and simple. It appears from the evidence that appellant and his father are negroes, the latter being an old man 70 years of age, and that both lived with a brother of the former and son of the latter in the city of Paducah. The evidence showed appellant to have been a violent and reckless man, and that he had served a term in the penitentiary, but that he and his father had always been on good terms. It was also shown by the evidence that appellant and one John Polk, also a negro were enemies; that shortly before the killing of Amos Smith appellant had threatened to kill Polk; and that on the morning of the day of the homicide appellant purchased a number of gun cartridges. It was further shown by the evidence that appellant about 7 p. m. of that day met John Polk on the street near his home, which was close to that of appellant, and with a shotgun attempted to shoot him, but that he was prevented from doing so by the act of Polk in grabbing the gun and calling for help; that the father and two brothers of Polk, hearing the cries, came to his rescue, and assisted him in holding or trying to take the gun from appellant. At that juncture appellant's father, Amos Smith, hearing the cries and seeing the altercation, appeared on the scene, and at once undertook to assist the Polks in wresting the gun from his son. When he took hold of the gun, the Polks released their hold upon it, and left to him the task of taking it from appellant. In the struggle that continued between appellant and his father for the possession of the gun the weapon was discharged, and the balls entering the body of the latter caused his death. According to the testimony of several of the Polks, during the struggle between father and son over the gun the son in an angry manner, and with an oath, told his father, if he did not release his hold upon the gun, he would shoot him, and this declaration was immediately followed by the discharge of the gun. Appellant denied the making of such a declaration, but admitted the shooting of his father, and claimed that it was purely an accident.

Although numerous grounds were urged for a new trial, but two of them impress us as being worthy of consideration. These are (1) the failure of the circuit court to grant the continuance asked by appellant before the beginning of the trial; (2) its alleged failure to properly instruct the jury.

When the indictment was returned, the court informed appellant that the case ought to be disposed of at that term, and ordered that it be set for trial four days later. Being then advised by appellant that he had not secured counsel and was without means to employ one, the court appointed a member of the bar present to defend him. The counsel named accepted the appointment, and, after a hasty conference with appellant, at once procured and placed in the hands of the sheriff subp nas for certain witnesses whose names appellant furnished him. When the case was called for trial on the day fixed by the court, appellant, through his counsel, informed the court that he was not ready for trial, and moved that the case be continued until the next term of the court, filing in support of the motion the affidavits of himself and counsel, in each of which was set forth the absence of certain witnesses, some of whom had not been served with the subpoenas issued at appellant's instance on the day of the return of the indictment, and the further fact that appellant's counsel had not been able to fully investigate the facts connected with the homicide for which appellant was indicted, or to properly prepare his defense. The court, having ascertained that the attendance of all the then absent witnesses, save one, could be procured by the time they would be needed refused the continuance, and, requiring appellant to state, in the form of an affidavit, the material facts to which the one...