Sparks v. Commonwealth

• Decision Date: 09 December 1921
• Citation: 193 Ky. 180,235 S.W. 767
• Parties: SPARKS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

235 S.W. 767

193 Ky. 180

SPARKS v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 9, 1921

Appeal from Circuit Court, Lawrence County.

Richard Sparks was convicted of murder, and he appeals. Affirmed.

C. F See, Jr., and M. S. Burns, both of Louisa, for appellant.

Chas I. Dawson, Atty. Gen., and Thos. B. McGregor, Asst. Atty Gen., for the Commonwealth.

MOORMAN J.

The appellant, Richard Sparks, was jointly indicted in the Elliott circuit court with Wes Sparks, John Auxier, and Dan Blevins for the murder of Mary Sparks. The indictment charged that Richard Sparks shot and killed Mary Sparks, and that Wes Sparks, John Auxier, and Dan Blevins, and each of them, did with malice aforethought, being present, aid, assist, abet, and encourage Richard Sparks in the shooting and killing of Mary Sparks. There was a trial of this case in the Elliott circuit court that resulted in a hung jury, and thereupon on motion of the commonwealth attorney a change of venue was granted to the Lawrence circuit court. On a trial in the Lawrence circuit court appellant was found guilty, and his punishment fixed at imprisonment for life in the penitentiary. To reverse that judgment this appeal is prosecuted.

Mary Sparks at the time of her death was 14 years of age, and resided with her father, Wes Sparks, referred to in the record as old Wes, or Wes Sparks, Sr., on Wallow Hole in Elliott county. On June 5, 1921, when she lost her life, she, in company with her father, a man 67 years of age, her mother, who was 42 years of age, her sister Ella and brothers Dan, Hughey, Mart, and John, attended the Wallow Hole Baptist Church, three miles from their home. They all walked except Mart. On the same day Richard Sparks with his father, known in the record as little Wes, or Wes Sparks, Jr., went to church, but they with John Auxier, Dan Blevins, Jim Barker, and others remained outside the church, and did not attend the services. At the conclusion of the service old Wes and his family started home and when they had gone some distance on their way a fight started between old Wes and little Wes, in which some of the members of their respective families and clans joined, and during which Mary Sparks and her brother Dan were killed.

The evidence shows that Dan Sparks in the preceding March had caused warrants of arrest to be issued for little Wes, and had assisted in breaking up a moonshine still on one of little Wes' farms. It further appears that about the same time he had caused little Wes to be indicted in the Elliott circuit court for moonshining, and that at the time of this trial there were many similar indictments pending in Elliott county against the witnesses for the defense and those who appear to have been retainers of little Wes.

It is clearly inferable from the evidence that Richard Sparks and those with whom he was jointly indicted, including others who gathered outside the church, felt bitterly toward old Wes and his son Dan. There was testimony to the effect that while old Wes and his family were in church Jim Barker announced to the crowd outside, many of whom had been drinking, that he was going to kill Dan Sparks before dark, and little Wes said to him, "to go ahead; that he was with him." When old Wes and his family left the church Barker accosted Dan Sparks, and inquired whether he had a pistol. To this inquiry Dan indicated that he did not have a pistol. These circumstances, with others shown in the record, clearly indicated the imminence of a general fight between the two factions, in anticipation of which Tabitha, the wife of old Wes, shortly after leaving the church, armed herself with a large stick, which she used effectively after the fight started.

Old Wes' crowd had proceeded along the public road towards home for some distance, when appellant rode his mule through or by the crowd, using profane language and in quiring whether any one would indict him for so doing, or whether any one would pull him off his mule. After riding through the crowd in that belligerent manner, he stopped and waited until old Wes' crowd passed him, and then again rode by them, making the same provocative remarks. He did this three times, according to the testimony of the witnesses for the commonwealth, and then little Wes came up on his mule, and alighting therefrom, said to old Wes:

"You and your boys ain't treated me and mine right, and I aim to kill the last God damned one of you."

At the same time he drew two rocks from his pocket and threw them at old Wes, who avoided them, and who with the assistance of his wife succeeded in knocking or throwing little Wes to the ground.

About the time that little Wes and old Wes became engaged in the fight five or six shots were fired, and, according to the testimony of several of the witnesses, at least two of those shots were fired by the appellant, Richard Sparks. The testimony for the commonwealth shows that when the fighting began Mary Sparks was standing with her hand on the shoulder of her brother Dan; that Richard Sparks was standing behind them, and fired at them, and that Jim Barker was standing rather to the front, though out of the range of Richard Sparks' bullets, and that he also fired. Mary Sparks was struck by a bullet beneath her shoulder, and Dan received a fatal wound in the neck under the chin. So far as the evidence shows, neither Dan nor Mary moved or changed positions during the time that the shots were being fired, and it appears therefore that the bullet which struck Mary Sparks could not have proceeded from the pistol that Jim Barker was using, but must have come from a point behind her where Richard Sparks was seen firing in her immediate direction.

The appellant's evidence tends to show that Richard Sparks did not have a revolver on that occasion, and, although there is no evidence in the record except that introduced by the commonwealth to show that Jim Barker did any shooting, it is intimated in the testimony of the witnesses for appellant that Barker did all the shooting, and he alone is responsible for the death of Mary Sparks. These insinuations, however, are incredible in the light of the preponderance of the testimony and the circumstances shown to exist. Mrs. Bond, the wife of the minister who conducted the services that day, saw appellant shooting from the rear of the murdered girl, as did Lula Smith, and it is shown that after Mary Sparks and her brother Dan had fallen Richard Sparks turned and advanced on old Wes with a pistol, but was restrained from shooting by Ella Sparks and Mart Sparks, the children of old Wes.

The testimony for appellant as to the origin and cause of the fight was that after Richard Sparks had passed by old Wes' crowd in the road and made a remark to the effect that he would like to see some one pull him off his horse, old Wes approached Richard with a knife in his hand, whereupon little Wes alighted from his mule and intercepted old Wes and told him that he would not permit him to do any violence to his son Richard, and thereupon old Wes and his wife made an attack on little Wes, and knocked him down, and after he was down old Wes stabbed him. A significant omission in the testimony for appellant is that none of his witnesses saw any shots fired, and while the shooting was going on none of them looked to see who was shooting, but directed their attention to old Wes and little Wes. Some of them say that their range of vision was obstructed, and for that reason they did not attempt to see who fired the shots.

But the evidence is ample and also convincing as to the appellant's culpability and his design and purpose to bring about the fight, which resulted in the death of the murdered girl. Indeed, there is ample evidence of a common purpose and design on the part of appellant and those who were with him outside the church to provoke just such a difficulty as arose, and it is readily conceivable that it was in furtherance of that purpose that appellant indulged in the provocative conduct immediately preceding the fight. The record disclosed ample evidence to justify the jury in believing that the shots which resulted in the death of this young girl proceeded from the pistol of appellant, and that the shooting and killing of Mary Sparks was a premeditated and willful act on his part. Unless, therefore, there was some error committed on the trial of the case that was prejudicial to the rights of the appellant, the judgment must be affirmed.

The first and main ground on which a reversal is sought is that of the admission of alleged incompetent testimony, in connection with which it is charged that the prosecuting attorney made improper and prejudicial remarks before the jury. Much of the testimony of which appellant complains was admitted without objection on his part, or, if objected to, no exceptions to its admission were reserved. In some instances objections were made, but the record shows no ruling thereon nor any exceptions thereto. As to the latter testimony, even if it was improper, its competency and relevancy cannot now be questioned, for it has been uniformly held by this court that, where an objection is made to a question or an answer, and the court does not rule on it, the objection should be treated as overruled, and to make the objection available on appeal an exception should be taken to the admission of the testimony. Carnes v. Com., 146 Ky. 425, 142 S.W. 723; Idle v. Com., 148 Ky. 618, 147 S.W. 381.

In Ulrich v. Com., 181 Ky. 519, 205 S.W. 586, this court said:

"It is a thoroughly well-settled rule of practice that an appellant cannot, upon appeal, complain of the admission of testimony to which he did not object upon the trial; and, although the court may have admitted the testimony over appellant's

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