Smith v. Commonwealth
| Decision Date | 07 April 1888 |
| Citation | 8 S.W. 192 |
| Parties | SMITH v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from circuit court, Whitley county.
Lewis Smith was indicted for murder. The jury found him guilty, and he appeals.
R. L Ewell and Smith & Perkins, for appellant.
The homicide with which appellant is charged was committed November 26, 1886, and the indictment against him was returned December 7, 1886, when the case was set for trial to take place during that term. In his affidavit for a continuance, appellant stated the absent witness, Walters would prove that the deceased had threatened to whip him if he voted at the election just passed for a certain candidate.
There is proof in the case of previous hostility between the appellant and the deceased, who were brothers-in-law, and also of threats of each against the other. But something more than a mere threat was involved in the statement of the deceased which appellant swore he could prove by Walters. It showed a disposition and intention on the part of the deceased to hector and bully the appellant, and would have been corroborative of the testimony of appellant, supported by that of his son, that the deceased commenced the difficulty by advancing upon and striking him with a club before the latter made any hostile demonstration. For notwithstanding there were several persons in the store-room where the killing took place, none of the witnesses state that appellant advanced upon the deceased, or commenced the difficulty; though none of them, except appellant and his son, are clear or precise in their testimony as to how the fight did really begin. We think--in view of the short time which elapsed from the killing to the trial, and the want of opportunity afforded appellant to prepare for his defense, having been in jail--that the case ought to have been continued; for the facts even as proved on the trial do not by any means clearly show the killing was not done in self-defense, and reasonable opportunity ought to have been given the defendant to exculpate himself, which under the circumstances we think was not accorded to him.
We perceive no other error of law occurring at the trial which constitutes a ground for reversal. The conduct of the commonwealth's attorney complained of cannot be considered by this court, because it was not excepted to at the time, and passed on by the lower court.
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Smith v. Commonwealth
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