Thompson v. Commonwealth

• Citation: 122 Ky. 501
• Parties: Thompson v. Commonwealth
• Decision Date: 29 March 1906
• Court: Court of Appeals of Kentucky

122 Ky. 501 Thompson
v.
Commonwealth Court of Appeals of Kentucky. March 29, 1906.

Appeal from Laurel Circuit Court.

H. C. FAULKNER, Circuit Judge.

Defendant convicted and appeals. Affirmed.

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(No brief in record for appellee).

HENRY C. HAZLEWOOD for appellant.

SAM C. HARDIN, W. L. BROWN, of counsel.

OPINION OF THE COURT BY JOHN D. CARROLL, Commissioner —Affirming.

James M. Thompson was indicted for willfully and maliciously striking and wounding James Sparks with a poker. The evidence in the case discloses that Sparks was the attorney for plaintiff,

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engaged in the trial of a case against the Standard Oil Company, of which company the appellant was manager. During the progress of the trial Sparks and W. L. Brown, attorney for the coal company, engaged in a heated controversy about the admission of evidence; Brown contending that he had a right to ask a certain question because Sparks had brought it out in his previous examination of the witness. Appellant says that, when he told Sparks that he had brought out the testimony, Sparks called him a "damned liar," and raised up from a chair with a knife in his hands, and then he struck him with a poker because he believed Sparks was going to cut him with the knife. Sparks testifies that if he had a knife in his hand it was only a small finger nail knife, and that he did not apply to appellant any offensive epithet, and that appellant struck him without provocation. The jury found the appellant guilty of striking in sudden heat and passion, and fixed his punishment at a fine of $150.

He complains that error was committed in failing to grant him a new trial on the ground of newly discovered evidence. An inspection of the affidavits in support of this ground disclose the fact that the newly discovered evidence was merely cumulative. It did not present any new question and only tended to support other evidence introduced on the trial; and, as has been frequently held by this court, newly discovered evidence which is merely cumulative is not suffifficient to authorize a new trial. Lewis v. Commonwealth, 93 Ky. 238; 14 Ky. Law Rep. 212; 19 S. W. 664; Curry v. Commonwealth, 74 S. W. 1077, 25 Ky. Law Rep. 281

It is also insisted that error was committed in the instructions given to the jury, but in our opinion

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they fairly presented the law applicable to the case, and were not prejudicial to the substantial rights of the accused; but if error had been committed in this respect it...