Stephens v. Commonwealth

• Decision Date: 22 September 1898
• Parties: STEPHENS v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

47 S.W. 229

STEPHENS v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

September 22, 1898

Appeal from circuit court, Woodford county.

"Not to be officially reported."

Ed Stephens was convicted of manslaughter, and appeals. Affirmed.

Ed. M Wallace and J. M. Hoge, for appellant.

W. S Taylor, for the Commonwealth.

HAZELRIGG J.

On the last Saturday night before the November election, 1897, the appellant, who was the marshal of the town of Midway, in Woodford county, shot and killed one Jason Miller. On his trial therefor he was convicted of the crime of manslaughter and sentenced to the state prison for the term of 21 years. On this appeal he complains of certain alleged incompetent testimony permitted to go to the jury, over his objection, and of the instructions of the trial court. Only a very brief statement of the circumstances surrounding the killing will be necessary in order to consider intelligently the legal questions presented. Miller and a large crowd of other persons were in and about Russell's saloon in the village. It was late at night, and the crowd left the saloon, which was about to be closed. When on the street, the crowd was noisy, and some of them, perhaps including Miller, were shouting for the candidate of their choice. There was no quarreling, however, and the utmost good nature prevailed. Information seems to have been conveyed to appellant, who was several hundred yards away, in another saloon, that there was a disturbance going on, and he hurried to the crowd in front of Russell's saloon, and at once proceeded to put under arrest a number of persons in the noisy crowd. These persons, among whom was Miller, all appear to have expostulated with the officer, claiming that they were not the guilty parties. While the officer had hold of Miller, it appears that he pulled away from him, saying that he wanted to explain or argue the matter with him. The crowd was surging back and forth, all talking, and all, to some extent, under the influence of intoxicants. The officer testifies that the crowd, headed by Miller, "crowded on him" or "rushed on him," and to save himself from imminent peril he shot Miller. To our minds, there is scarcely a shadow of proof to show that the officer was in any danger. It is true that the persons sought to be arrested were reluctant to submit, and in fact pulled away from him; one hugged a tree box and could not be detached from it.

When Miller pulled away, the officer apparently became excited, and, in a fit of exasperation at his inability to control the crowd, fired the fatal shot, with the belief, it may be, that he was but discharging his duty.

While on the witness stand appellant was asked if he had not taken one or more intoxicating drinks just before the killing. He denied that he had, and the state was then allowed in rebuttal to contradict this, and show that he had been drinking that night. It is insisted on the authority of Kennedy v. Com., 14 Bush, 340, and cases there cited, that this was a contradiction on a collateral and irrelevant matter, and hence not permissible. While the point is pressed with earnestness, it is manifest to us that to show the condition of...