Tall v. Commonwealth

• Decision Date: 21 May 1908
• Citation: 110 S.W. 425
• Parties: TALL v. COMMONWEALTH
• Court: Kentucky Court of Appeals

110 S.W. 425

TALL v. COMMONWEALTH

Court of Appeals of Kentucky.

May 21, 1908

Appeal from Circuit Court, Lincoln County.

"Not to be officially reported.

James Tall was convicted of willfully shooting and wounding with intent to kill, and appeals. Reversed and remanded.

G. B Saufley, T. H. Shanks, and T. J. Hill, Jr., for appellant.

James Breathitt, Atty. Gen., and Tom B. McGregor, Asst. Atty. Gen for the Commonwealth.

NUNN J.

Appellant was tried, convicted, and sentenced to serve his natural life in the penitentiary. He was charged with having willfully and maliciously shot at one person, with the intention of killing him, and missing him and wounding another. He was also charged with having been twice previously convicted of felonies.

It appears from the record that Standford is a local option town, and, at the time the offense charged in the indictment was committed, there was a saloon in the town of Rowland authorized by law to sell whisky, which was situated about one mile from the town of Standford. Appellant, a colored man, was invited by one George Smith, a white man, to go with him to Rowland to get some liquor. Another person present loaned smith a quarter, and also furnished appellant with a quarter to get some whisky for him, and promised to give appellant some of it, when he returned, for his trouble. Smith and appellant went first to appellant's house to get some bottles to put it in, and while there Smith borrowed appellant's overcoat. They went along the railroad track and when about one-half mile away Smith placed the overcoat on the ground near a telegraph pole. When they reached the saloon, Smith gave appellant his quarter and requested him to buy the liquor, stating that they would divide it when they returned to Standford. They entered the saloon. Appellant purchased the whisky and stepped out in front of the building. Smith walked into the back room of the saloon and found Ed McCarty sitting in a chair drunk. They walked out into the saloon, took several drinks, left, and started to Standford along the railroad track. As they left they addressed appellant, saying: "Nigger, come on." He started off walking behind the parties. When they reached a point about 200 yards from the saloon, they stopped, and McCarty remarked to appellant: "Nigger, come up and divide that whisky." And when appellant reached a point on the track opposite where they were standing near the track, McCarty said something which caused appellant to run. Smith and McCarty pursued him for about 100 yards, when appellant left the track, and ran up an embankment about 8 feet high. McCarty followed him. There was a wire fence at the top of the bank that prevented appellant from going farther. We will quote what each of the three said took place at this particular time.

Smith testified that: "We were then close on to him, and when he ran up on the bank he turned around, and I saw a pistol in his hands. At this time McCarty was starting up the bank towards him. Jim told him three times to "stop, go back,' and just as he said it the third time, McCarty turned to start back, as I thought. Instantly I heard a shot and saw the fire jump in the direction of McCarty. When McCarty turned to come down off of the bank just before the shot was fired, I saw a knife in his hands. But I do not know when he drew it from his pocket."

McCarty testified as follows: "I went up the track after him for about 100 yards and overtook him. He then ran off the track, and up on an embankment, and had his pistol out. I went up after him, but just as I reached the top of the bank, he pointed the pistol at me, and I turned to come back down. When I saw him point his pistol, I was afraid he would shoot me, and I pulled my knife from my pocket. As I turned he fired one shot at me and another down the track."

Appellant testified as follows: "They walked on up the track to the cattle guard at the Goshen pike crossing, about 150 yards from the saloon, and then stopped. I walked on and just as I got even with them I saw Mr. McCarty pull something out of his pocket, and heard it click. It was a moonlight night, and I could see plain that it was a dirk knife, with a long blade. McCarty said: "Skiddoo, you blacks ___ b ___.' And I started running up the track towards Standford. They ran after me for about 100 yards, and I was getting tired. I ran off the track, and up on a bank on the side of the track, and they were close on me when I did this. I tried to get out of the way, but ran into a barbed-wire fence that is on the side of the track, and they were so close on me that I did not have time to get through it. I backed up against it as far as I could, and told Mr. McCarty, who had followed me up on the bank, with his knife in his hand, to go back. I said this to him three times, but he kept coming on me and was cutting at me. *** I shot once into the ground right by his side and near his feet to scare him into going back. He kept pressing me, and I fired again at him. He then stopped, and turned back down off the bank, and went on up the track with Smith, and I followed behind them."

Appellant assigns many grounds for a reversal of the case, but we will only consider one or two of them. His counsel claims that the instructions given by the court are erroneous and prejudicial to defendant. Instruction No. 1 is as follows "Gentlemen of the jury, if you believe from the evidence, beyond a reasonable doubt, that in this county, and before the finding of the indictment, namely, March 6, 1907, the defendant, James Tall, willfully, feloniously and with malice aforethought, shot and wounded George Smith with a pistol with the intention of killing him, or shot at Ed McCarty with the intention of killing him, and wounded said Smith, but of which wounding said Smith did not die, then you...