Taylor v. Commonwealth

• Decision Date: 13 October 1931
• Citation: 240 Ky. 450,42 S.W.2d 689
• Parties: TAYLOR v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

42 S.W.2d 689

240 Ky. 450

TAYLOR v. COMMONWEALTH.

Court of Appeals of Kentucky

October 13, 1931

Appeal from Circuit Court, Knox County.

William Taylor was convicted of voluntary manslaughter, and he appeals.

Reversed.

R. L Pope, of Knoxville, Tenn., and J. B. Campbell, of Barbourville, for appellant.

J. W Cammack, Atty. Gen., and Geo. H. Mitchell, Asst. Atty. Gen for the Commonwealth.

RICHARDSON J.

William Taylor was indicted, tried, and convicted in the Knox circuit court on the charge of murder; the jury found him guilty of voluntary manslaughter and fixed his punishment at twenty-one years in the penitentiary. He appeals.

The appellant and Gilbert Broughton were related; the wife of deceased was a niece of appellant. Broughton was a merchant. Appellant was a farmer, occasionally working in timber when not engaged in farming. He was receiving from the federal government a pension of $19 a month. He became indebted to Broughton in a sum of about $200 for merchandise, purchased by him and his family at Broughton's store. Broughton desired to collect his account and, on different occasions, had demanded of him its payment. They lived within about three hundred yards of each other.

On the day Broughton was killed, he left his home, riding a mule, to go to his mother's. Shortly after leaving his home he returned, and when within about seventy-five yards of it, he was shot with a shotgun by appellant; the shot entering his left side, ranging up, and lodging in his shoulder. At that time he was on his mule with saddle pockets tied to his saddle. There is an irreconcilable conflict in the testimony as to whether the appellant was in or out of the road at the time he fired the shot, and as to whether deceased had a pistol in his hand at that time.

The wife of deceased claims she witnessed the killing. She states that at the time he fired the gun, appellant was standing with it in his arms in the edge of the weeds near the side of the road; that deceased was riding his mule when appellant stopped him and engaged him in conversation; that her husband had his hands crossed in front of him, resting them on his saddle, at the moment appellant threw his gun on him and shot; and that deceased fell off the mule and exclaimed, "Lord have mercy." She claims that at the time of the shooting she was on the front porch of her home, and that as soon as appellant shot the deceased, he immediately shot at her, one shot striking her in the arm, two in the shoulder, and one in the leg; that she obtained as quickly as she could a 25-22 Winchester rifle and fired three shots at appellant; when he again fired at her. He then ran through the weeds, and she ran to the rear of her home to an old house and again shot at him. She shot at him three times from the porch and three times from the back of her home. After the shooting appellant went away. At the time appellant shot deceased, she claimed deceased was not making any demonstration toward, nor attempting to do anything to, appellant. She at once went to deceased, laid the gun she was carrying on the ground, and turned him over. The deceased was in the road, and as soon as she turned him over she felt of his pulse and discovered he was dead. His saddle pockets were tied to his saddle, laying across his legs. A fruit jar containing a white liquid was in the saddle pockets, but there was no weapon in them. The deceased at the time had no weapon of any description on or about his person. The weeds where she claimed appellant was standing were estimated by her to be several feet in height. Other witnesses stated they were five or six feet in height.

Tom Gambrell and his wife, Bessie Gambrell, at the time of the killing resided about three hundred yards from the home of deceased. They were at their home on the day of the killing. There was timber between Gambrells' home and the deceased's home. The place at which deceased was killed could not be seen by them from their home. They did not see the killing, but heard the shots which, as they described them, were two shots of a shotgun, two or three shots of a smaller gun, then a third shot of the shotgun, and two or three more shots of the smaller gun. They saw appellant running past their home with a shotgun in his arms, within two or three minutes after the shooting. Immediately, Tom Gambrell ran to where deceased was shot. He was lying across the road on his back; the saddle pockets were tied on the saddle. The deceased's hands were under his body. Gambrell examined the saddle pockets and found in them a quart jar filled with a liquid which he did not examine. He got to deceased's body about the time the deceased's wife arrived. He was shot in the left side and his shirt was covered with blood. The load of shot ranged up toward the shoulder. He claims that the tops of the weeds near the edge of the road were broken off close to where deceased was lying. A few poles were in the weeds and a man's tracks were in the weeds, three or four steps from the road, "right around where the weeds were broken off." A man's tracks came from out of the weeds toward the road. Other witnesses residing near where the killing occurred described the shots as they heard them. Others described the condition of the weeds and the presence of the tracks therein near where the shooting occurred. As would be expected, there is a difference in the statement of the several witnesses in respect to their observations.

The appellant in his own behalf testified that he had traded at the store of deceased for one or two years, and that a dispute arose, and existed, between him and deceased about his store account. He stated that on the day of the killing he came from Middle Creek to his home; that shortly thereafter he left home to go to the August primary election. On leaving his home he carried his shotgun under his arm, or on his shoulder; walking; that he did not know Broughton had gone away from his home on that road, or that he was returning on it. He passed deceased's home, and while walking on the right side of the road, he heard the sound of horse's feet on the "creek road." On hearing it, he looked and saw Broughton coming up the creek on his right side of the road; they met each other; deceased was in plain view of him, forty yards away before they met; and on meeting each other the deceased stopped and asked where he was going. He responded he was going to the election. The deceased was "pretty drunk" and inquired of him if he wanted a drink of liquor. He stated to him that he did not. Thereupon, deceased threw his saddle pockets up on his leg, or his leg behind the saddle pockets and in front of his leg, pulled his leg around a little, and said: "Come on and go into the house with me, I have got plenty at the house and will give you all you can drink." He again informed deceased that he was going to the election and to hire some hands to work for him the next week. The deceased repeated his request to go to the house with him and get some liquor. He followed this up by saying, "When are you going to pay me?" Appellant informed him that he would pay him out of next check. The deceased then demanded that he give him his government check. Appellant informed him that he did not have it. The deceased thereupon said to him, "God damn you, don't you move hand or foot, I am going to kill you," and immediately reached his hands into the saddle pockets and brought out a pistol, and as his hand came out with the pistol, he raised his gun and fired it, shooting one time at deceased. It was a large pistol and looked like a .45. At the time he raised his gun and fired at deceased, deceased's pistol was in his hand. Immediately thereafter three shots were fired at him from the home of deceased, by some one not seen by him. He turned around without seeing any one at the house, shot toward it, and then ran. He saw deceased's wife back of her home, going toward another house, when she shot at him again. He did not shoot at her but once. He then went to his home and remained in the cornfield until the officers came and arrested him.

Certain alleged threats made by the appellant against deceased were testified to by Clayborn Taylor. Osco Warren testified that he and appellant, in June or July, borrowed a gun from Frank Patterson, the appellant stating at the time that he was going to kill deceased with it; that witness and appellant borrowed the gun for the purpose of appellant killing deceased, and the witness to use it to kill Clayborn Taylor. The testimony of these witnesses, as well as the testimony of other witnesses who testified as to conversations with appellant relative to his indebtedness to Broughton, was competent. The weight to be given same was for the jury to determine. Without further particularizing the evidence or attempting to set it out in this opinion, it cannot be doubted that the evidence was sufficient to authorize the submission of the case to the jury.

The appellant urges as ground for reversal: Alleged improper conduct of the trial court; improper conduct of the commonwealth's attorney; error of the court in refusing to grant a change of venue; error of the court in refusing to continue the prosecution; error of the court in admitting incompetent evidence in behalf of the commonwealth, and the rejection of competent evidence offered by him.

The conduct of the court complained of is his alleged improper statements during the impaneling of the jury. After seven jurors had been examined and qualified, the judge in the presence of these jurors, and in the presence of those whose names had been drawn from the wheel, summoned, and were present to be examined as jurors, made statements substantially as follows: "The jury box is the very best place to play...