Souther v. Belleau

• Decision Date: 30 May 1924
• Citation: 262 S.W. 619,203 Ky. 508
• Parties: SOUTHER v. BELLEAU.
• Court: Kentucky Court of Appeals

262 S.W. 619

203 Ky. 508

SOUTHER v. BELLEAU.

Court of Appeals of Kentucky.

May 30, 1924

Appeal from Circuit Court, Boone County.

Action by Minnie Belleau against Henry D. Souther. Judgment for plaintiff, and defendant appeals. Affirmed.

O. M Rogers, of Covington, for appellant.

John L Vest, of Walton, for appellee.

SAMPSON C.J.

This action was commenced in the Boone circuit court under section 4, Kentucky Statutes, by Minnie Belleau against appellant Henry D. Souther, to recover of him damages for the malicious shooting and killing of her husband with a shotgun, not in his necessary self-defense. The petition is a model of brevity and directness, and reads:

"The plaintiff, Minnie Belleau, states that on November 28, 1920, she was the lawful wife of William Belleau, and on said date the defendant, Henry Souther, not in his self-defense, maliciously shot and killed said William Belleau with a shotgun, loaded with powder and lead and other hard substances, and that by reason thereof the plaintiff has been damaged in the sum of $25,000. Whereof she prays judgment. * * *"

The jury returned a verdict in favor of the widow in the sum of $7,000, on which judgment was entered. This appeal is from that judgment.

The facts which led up to the homicide were about as follows:

In the spring of 1920 the appellee and her deceased husband moved on the farm and in the home with the appellant, the same being a double house, under a cropping contract. The farm was owned by the appellant's father. The deceased was permitted to own and keep a cow on the place for family use. The appellant and the deceased got along together, at least without any serious break, until November 27th, when the appellant requested deceased to move his cow from the barn where he had been keeping her to the tobacco barn north of the residence, in order that he might have the use of the stall that had been occupied by his cow. The deceased refused to move his cow, or allow appellant to have the use of the stall. On the afternoon of that day the appellant took possession of the stall, by placing one of his cows in it. When the deceased came to the barn that evening, and saw one of appellant's cows occupying the stall, appellant says he grabbed a pitchfork, rushed at the appellant, and ran him out of his own barn and barn lot to the house.

The shooting took place in a cowshed about 200 or 300 feet from the house. The shed was a "lean-to" against the main barn, and there had been cut a door above to the loft in the main barn, and near the top of the shed, to enable one to climb up a ladder from the shed into the hay loft; in fact, there were two such openings, but only one seems to play any part in this tragedy. Belleau had his cow in one of the stalls of the barn; this stall being the third one from the entrance, and about 12 feet from the door leading into the hay loft, which was in use. The first stall at the opening where entrance was had into the shed was about 6 feet wide, and each of the remaining tiers of stalls was about 3 feet wide, and Belleau's cow being in the third stall would make this point from 9 to 12 feet on a level from the door leading into the hay loft; but when it is considered that the door at the top of the shed was reached by a ladder, and was some 10 or 12 feet high, the distance along the hypothenuse of the triangle would be something in the neighborhood of 12 feet from the door to the front of the stall, when measured from the middle of the stall, although the exact distance is a matter of no great consequence.

It was further shown that the deceased had been shot from such a position that the shot ranged from the top of his right ear, down his right cheek, and found lodgment in his neck and mouth, and a small part of his cap, which he wore at the time he was shot, was later taken out of his mouth by the doctor called to attend him. Belleau lived only a few hours, and died without having regained consciousness.

It is the theory of the plaintiff and appellee in this case that the fatal shot was fired from the door in the loft, while the deceased was somewhere in the barn, so as to make the range of the bullet downward, and that he was shot from behind, as the trend of the bullet was towards the front. Outside of the proof of the physician, conditions surrounding the barn, the location of the door in the hay...