Sparks v. Commonwealth
| Decision Date | 02 February 1923 |
| Citation | 198 Ky. 518,249 S.W. 749 |
| Parties | SPARKS v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, McCracken County.
Ray Sparks was convicted of assault with a deadly weapon with intention to kill, and he appeals. Affirmed.
Reed & Burns, of Paducah, for appellant.
Chas I. Dawson, Atty. Gen., and T. B. McGregor, Asst. Atty. Gen for the Commonwealth.
The appellant and defendant below, Ray Sparks, was convicted in the McCracken circuit court and punished by confinement in the penitentiary for one year under an indictment returned therein accusing him of the offense of willfully and maliciously striking another with a deadly weapon with the intention to kill him, but from which the one struck did not die, which is one of the crimes denounced by section 1166 of the Kentucky Statutes. His motion for a new trial was overruled, and he has appealed, insisting through his counsel as grounds for reversal: (1) Error of the court in refusing to grant the new trial for newly discovered evidence; and (2) error in giving to the jury instruction No. 2.
The prosecuting witness upon whom the alleged felonious assault was committed was Dave Warren, and the assault occurred one evening after dark in the railroad yards near Paducah, at which place defendant, according to Warren and other witnesses who testified for the commonwealth, approached the witness from behind and said to him, "Dave, wait a minute," whereupon the witness, who was then engaged as a switchman for one of the railroads running into Paducah and who then had on his gloves, with a lantern in one hand, turned and faced the defendant, who was accompanied by two other men, one of whom was named Calhoun, and that the latter asked him, "Did you tell anybody I was drunk?" The witness answered in the negative, but stated that he told one McGregor that Calhoun and his companions, among who was the defendant, were drunk while on duty as guards during the strike of the railroad shopmen then prevailing, and over whom McGregor was foreman. Whereupon Calhoun said: "You are a G____ d____ liar, and I can whip you if you did say it." At that juncture defendant, who was behind or to the side of witness, struck him with a large pistol which he then had in his hand and knocked witness senseless, and after he was knocked down defendant again struck him once or twice and left him lying upon the railroad track upon which a number of freight cars were backing not far distant. Witness was removed from the track by some of those who witnessed the assault and by others who immediately arrived. The prosecuting witness was corroborated by other witnesses who testified for the commonwealth, but defendant and his two companions testified to a state of facts tending to show that the prosecuting witness was the aggressor and that defendant struck in the exercise of his right of self-defense. Defendant also denied that the witness had on gloves, though that fact is quite conclusively established. Defendant also denied striking the witness more than one time, although there were three severe, separate, and distinct wounds on his head.
1. The foundation for the first ground relied on for a reversal is an affidavit of an alleged newly discovered witness who detailed a conversation with the prosecuting witness, or a statement made by the latter in affiant's presence, contradicting the testimony given on the trial by the witness, and who stated, according to the affiant, that the difficulty occurred in a different manner from that testified to by him on the trial, which clearly was impeaching in its nature and for which character of newly discovered evidence a new trial will not ordinarily be granted as this court has held in an unbroken line of decisions. But, independently of that fact, there were filed, on the motion for a new trial, affidavits of other witnesses disclosing alleged misconduct on the part of the prosecuting witness by conversing with the jury, or members thereof, while the prosecution was being tried, and in which the jury was urged to not let defendant escape, but to send him to Eddyville, as well as making other alleged similar and highly...
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Weber v. Com.
...196 S.W.2d 465 303 Ky. 56 WEBER v. COMMONWEALTH. Court of Appeals of KentuckyJune 7, 1946 ... Rehearing ... Denied Oct. 4, 1946 ... Appeal ... from Circuit ... While an intent to commit ... an act may be presumed where there is evidence of an ... aggravated assault (Sparks v. Commonwealth, 198 Ky ... 518, 249 S.W. 749), yet the questions are quite naturally ... raised as to whether the accused had some reason, ... ...
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Weber v. Commonwealth
...different class. While an intent to commit an act may be presumed where there is evidence of an aggravated assault (Sparks v. Commonwealth, 198 Ky. 518, 249 S.W. 749), yet the questions are quite naturally raised as to whether the accused had some reason, apparent or real, for doing so, and......
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Ward v. Commonwealth
... ... Commonwealth, 96 Ky 422, 29 S.W. 340, 16 Ky. Law Rep ... 602, Commonwealth v. Heath, 99 Ky. 182, 35 S.W. 277, ... 18 Ky. Law Rep. 57, and Riggs v. Commonwealth, 33 ... S.W. 413, 17 Ky. Law Rep. 1015. As bearing upon questions ... discussed, we also cite the cases of Sparks v ... Commonwealth, 198 Ky. 518, 249 S.W. 749, Austin v ... Commonwealth, 201 Ky. 615, 258 S.W. 320, and Noral ... v. Commonwealth, 202 Ky. 318, 259 S.W. 706. The court ... therefore erred in giving to the jury instruction 11, which ... submitted the punishment provided in section 1242, ... ...
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Ward v. Commonwealth
...99 Ky. 182; and Riggs v. Commonwealth, 17 K.L.R. 1015. As bearing upon the questions discussed we also cite the cases of Sparks v. Commonwealth, 198 Ky. 518; Austin v. Commonwealth, 201 Ky. 615, and Noral v. Commonwealth, 202 Ky. 318. The court, therefore, erred in giving to the jury instru......