Strong v. Commonwealth

• Decision Date: 15 October 1926
• Citation: 216 Ky. 98,287 S.W. 235
• Parties: STRONG v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

287 S.W. 235

216 Ky. 98

STRONG
v.
COMMONWEALTH.

Court of Appeals of Kentucky.

October 15, 1926

Appeal from Circuit Court, Breathitt County.

Brown Strong was convicted of voluntary manslaughter, and he appeals. Reversed, with directions.

John D. Carroll and John S. Carroll, both of Frankfort, and W. L. Kash and A. S. Johnson, both of Jackson, for appellant.

Frank E. Daugherty, Atty. Gen., and Chas. F. Creal, Asst. Atty. Gen., for the Commonwealth.

THOMAS, C.J.

The appellant, Brown Strong, at his trial in the Breathitt circuit court under an indictment charging him with murdering George Watts, was convicted of voluntary manslaughter, and punished by confinement in the penitentiary for a period of seven years. His motion for a new trial was overruled, and from the judgment rendered on the verdict he prosecutes this appeal, relying upon a number of alleged errors as grounds for a reversal; but the only two which we deem of sufficient merit to require our consideration are: (1) The admission of incompetent testimony offered by the commonwealth; and (2) newly discovered material evidence for defendant, which the court held insufficient to authorize a new trial.

Before taking up the discussion of either of those grounds a brief statement of the substance of the testimony is deemed necessary. The killing occurred late in the afternoon of May 26, 1925, on a public road paralleling and running near to one fork of the Kentucky river at a point where John Little's Creek empties into it and not far from the post office of Whick, a railroad station. In the early part of the afternoon the deceased, his brother, Kelly Watts, and Bob Noble were fishing in the river near the mouth of the creek, and, having no success, they concluded to go upstream to a point beyond the residence of Dan Fugate, and in doing so they passed by the residence of defendant, who was in a nearby field and carrying with him a shotgun. He was spoken to by the three and invited by some of them to take a drink of liquor with which they appear to have been plentifully supplied. He accepted the tendered hospitality, and besides taking a drink he filled from the container, in the possession of the three, a half pint bottle and returned to his house for "a few minutes." The fishing party went on and became engaged in conversation with Dan Fugate at his residence, and concluded to engage in no more fishing, and started down the road on the return trip, when they met defendant going from his house toward Fugate's on his horse. He soon returned and overtook the fishing party near the front of his residence and invited them to go in and have supper, which they declined, he in the meantime having eaten his supper. The deceased and his brother, Kelly Watts, were on one horse, the latter riding behind, and he said, while on the witness stand, that when defendant overtook them on his return from Fugate's he said:

"I have got more nerve than any man in Breathitt county. Look what I have done; been shot here; had my whole jaw took out; and that didn't put me to sleep."

The witness thus recites the occurrences immediately preceding and at the time of the homicide: [287 S.W. 236] "We went on down about a quarter or half a mile below his house. I was riding behind and had my hand on my thigh this way. He pulled his horse's reins back and says, 'Kelly, you have had your hand on your pistol all evening.' I says 'Brown, you are mistaken; I have no pistol.' He says 'You are a God damned liar; you have.' And throwed his leg over the saddle and hit the ground, and he caught me by the coat and jerked me off, I caught by my left hand on his shoulder and went on the ground with this hand, got hold of a rock, and I raised--he was jobbing me with his pistol. I knocked the pistol off, and he struck me in the head. I struck at him with the rock and hit him in the head or somewhere--I don't know where I hit him--but I struck at him three or four licks, and my brother says, 'Kelly, quit racketing and let's go on home.' I says, 'All right.' My brother got off his horse and come walking down the road with his hands by the side of him, and Brown went off below in a little bushes, and I heard a gun fire and turned, and my brother throwed his head back that way. I run to him--I don't know how many shots was fired--I says, 'Are you killed?' He says, 'Yes; I am killed.' He was coming with his pistol, had his pistol in his hind pants pocket and bringing her kindly up that way and fired one shot, and when he done that I grabbed the pistol, says, 'Give me that quick'; and he jerked it over this way and says, 'I am not going to do it.' I grabbed at her again, and he says, 'Brown Strong has killed me; let him go; don't hurt him.' "

The admitted dying declaration of the deceased (the competency of which was objected to, thus raising a question to be hereinafter determined) corroborated the testimony of Kelly Watts in some of the material features as to what occurred immediately at...