Stinson v. Commonwealth

• Decision Date: 21 September 1906
• Citation: 96 S.W. 463
• Parties: STINSON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

96 S.W. 463

STINSON v. COMMONWEALTH.

Court of Appeals of Kentucky.

September 21, 1906

Appeal from Circuit Court, Todd County.

"Not to be officially reported."

R. B Stinson was convicted of voluntary manslaughter, and appeals. Affirmed.

Petrie & Standard, for appellant.

N. B Hays and C. H. Morris, for the Commonwealth.

SETTLE J.

Appellant was tried in the Todd circuit court under an indictment charging him with the murder of William Bouie. The jury found him not guilty of murder, as charged, but of voluntary manslaughter, and fixed his punishment at confinement in the penitentiary for 15 years. He asks of this court a reversal of that judgment.

The facts of the killing were, in substance, as follows Appellant, with three others, John Duncan, Doc Welborn, and William Bouie, were engaged in a game of cards. During the progress of the game, $1 of the money for which they were playing disappeared from a coat where the whole of the money had been placed. Bouie accused appellant of taking or stealing the dollar, the latter denied it, whereupon the charge was repeated by Bouie, who in addition called appellant "a durn liar." By this time the parties had arisen from their seats and were confronting each other appellant at the time having his pistol in his hand and asking that he be searched by some of the party in order that it might be ascertained whether he had the missing dollar. While thus situated appellant threatened to shoot Bouie if he repeated the charge of his having taken the money. Bouie laid his hand upon Stinson's breast, making at the time a remark which was not fully understood by the persons present. Appellant then shot him three times with a pistol, and Bouie shortly thereafter died from the wounds thus inflicted. Appellant claimed to have done the shooting in his necessary self-defense, and testified upon the trial that Bouie, before he was shot, caught him by the throat with one hand and placed the other in his pocket as if for the purpose of drawing a pistol or other weapon, which conduct on his part induced appellant to shoot him, in the belief that it was necessary to do so to protect himself from death or great bodily harm at the hands of Bouie. Appellant's testimony as to what occurred at the time of the killing was in large measure supported by that of W. W. Johnson, who was present at the time, though not a participant in the game of cards, and also to some extent by that of Doc Welborn. On the other hand, John Duncan, who was introduced as a witness for the commonwealth, testified, in substance, that, though Bouie accused appellant of taking the dollar, he did not seize him by the throat, or otherwise assault him; that after appellant denied the first charge made by Bouie that he had taken the dollar, Bouie said to him, "You are a durn liar," and appellant then grabbed Bouie's right wrist with his left hand and presenting a pistol said to Bouie, "I will shoot the G_____d d_____n hell out of you if you call me a liar," and immediately thereafter the shooting occurred. Seeing that appellant was about to shoot Bouie, Duncan and Welborn left the scene of the shooting and did not stop until they reached a place of safety, a short distance away. Duncan further testified that he saw no weapon in Bouie's hand, or upon his person, nor did the latter attempt to draw a weapon of any kind. It is evident that Bouie had no pistol on his person at the time of the difficulty, for a search of his clothing, made immediately after the shooting, disclosed the fact that he had no weapon except a small knife, found in one of his pockets.

While numerous errors were assigned in appellant's motion and grounds for a new trial, his counsel urge but three of these in asking a reversal of the judgment of conviction, viz That the lower court erred in permitting to be read to the jury, for the purpose of discrediting the witness Johnson, an affidavit made by him shortly...