Spriggs v. Commonwealth

• Decision Date: 13 June 1902
• Citation: 113 Ky. 724,68 S.W. 1087
• Parties: SPRIGGS v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

68 S.W. 1087

113 Ky. 724

SPRIGGS v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

June 13, 1902

Appeal from circuit court, McCracken county.

"To be officially reported."

James Spriggs was convicted of the offense of manslaughter, and he appeals. Affirmed.

John K Hendrick, Hendrick & Miller, and J. G. Husbands, for appellant.

Clifton J. Pratt, for the Commonwealth.

DU RELLE, J.

Appellant was indicted for the murder of Mamie Rogers, found guilty of manslaughter, and his punishment fixed at confinement in the penitentiary for 21 years at hard labor. The testimony in the case requires little consideration. The witnesses for the commonwealth show an entirely different case from that shown by the witnesses for the defense. The commonwealth's case is that the accused was in love with the girl who was shot and was very jealous of the attentions of another young negro, named Futrell; that he had threatened to kill the girl if she went with the latter; that they were sitting together with her sister, on the porch of her brother's house, on perfectly friendly terms; that the two women started to go across the street to a hall where a ball was being given that he asked Mamie, with an oath, if she was going to see Futrell; that she jokingly said she was, whereupon he drew from his breast a pistol, and deliberately aimed at and shot Mamie as she stood just outside the gate. The case of the accused is that he and the girl were on the best of terms that he was not jealous; that he had taken the pistol from her trunk to prevent one Scott, a friend of her sister's, from getting possession of it, as Scott was drunk and trying to obtain it for the purpose of raising a disturbance; that he had the pistol swinging on his finger by the trigger guard,--the pistol being of such a make that pulling the trigger would not explode it, unless at the same time the butt, which contained a spring, was gripped by the hand; that as the two girls started to go, and were standing within two or three feet of him, the pistol slipped, and was about to fall, when he, automatically and unconsciously, to prevent its falling, gripped it by the butt, and it was accidentally discharged, and killed the girl. It may be mentioned that the testimony of the physicians as to the course of the ball to some extent corroborates the accused's statement of the relative positions of the parties.

Counsel for the accused deliberately and purposely refrained from making a motion for a new trial, but did move the court "to render a judgment, upon the verdict returned by the jury, discharging him from custody, and as acquitted of the crime charged against him in the indictment." There is no question here of oversight or omission by counsel. The case was practiced throughout in the most approved style, by able counsel, and the action taken was for the definite purpose of presenting for decision this question of pure law Was the judgment in this case void, and is the power of the courts over this prosecution ended? The whole contention for appellant is based upon this proposition: The jury found the defendant guilty of manslaughter. Manslaughter, at common law, was a recognized crime. By the Virginia and Kentucky statutes it has been divided into the statutory offense of voluntary manslaughter, punishable by confinement in the penitentiary not less than 2 nor more than 21 years (Ky. St. § 1150), and involuntary manslaughter, which remains a common-law offense, for which no punishment has been prescribed by statute, and which is therefore punishable only by fine and imprisonment in the county jail. There no longer remains any such offense as manslaughter, under the laws of this state. There is no statute defining or punishing such an offense, and what is left of the common-law offense known by that name is involuntary manslaughter. Under an indictment for murder, a conviction may be had of murder, voluntary manslaughter, or involuntary manslaughter. Therefore, when the jury found the defendant guilty of manslaughter, they found him guilty of an offense which did not exist, and by their finding acquitted him of the offenses included in the charge in the indicment, viz., murder, voluntary manslaughter, and involuntary manslaughter. It would follow, if this contention is sustained, that the court erred in overruling the motion for discharge, and that we must reverse that order. The authority chiefly relied on is Conner v. Com., 13 Bush, 714, where, upon an indictment for murder, conviction was had, under the instructions of the court, for the offense of killing by willfully striking, etc.,-- a new offense created by statute, being the offense now described in section 1151, Ky. St. It was held that, under sections 262 and 263 of the Criminal Code of Practice, this statutory offense was not a degree of the offense of homicide; that therefore, under indictment for murder, the defendant could not be found guilty of this offense; and that a conviction of the statutory offense under an indictment for murder was equivalent to an acquittal of the crime of murder and all subsidiary crimes included in it, and the court erred in not discharging the prisoner on his motion. In the elaborate opinion by Judge Cofer, the case of Terrell v. Com., 13 Bush, 253, is overruled upon this point, and the contention of appellant in this case as to the degrees of murder under the common law as modified by the Kentucky statutes is fully sustained. In Buckner v. Com., 14 Bush, 601, in an opinion by Judge Hines, the degrees of homicide, viz., murder, voluntary manslaughter, and involuntary manshlaughter, were recognized, and the case reversed for failure to give an instruction upon involuntary manslaughter, which omission was held to be prejudicial. So, in Mitchell v. Com., 78 Ky. 219, the judgment was affirmed, in an opinion by Judge Hines, though an instruction as to involuntary manslaughter had not been given; the court holding that as there had already been an instruction "as to the law of voluntary manslaughter,--intentional killing without malice,--and as the jury found the killing to have been done with...