Thompson v. Commonwealth

• Decision Date: 29 March 1906
• Citation: 91 S.W. 701,122 Ky. 501
• Parties: THOMPSON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

91 S.W. 701

122 Ky. 501

THOMPSON v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 29, 1906

Appeal from Circuit Court, Laurel County.

"To be officially reported."

James M. Thompson was convicted of a malicious assault, and he appeals. Affirmed.

W. L Brown and S. C. Hardin, for appellant.

CARROLL C.

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, engaged in the trial of a case against the Standard Coal 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 hand, 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 sufficient to authorize a new trial. Lewis v Commonwealth, 93 Ky. 238; 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 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 could not be considered on this appeal, because not mentioned in the motion and grounds for a new trial. Section 271 of the Criminal Code of Practice provides that "the court in which the trial is had upon an issue of fact may grant a new trial if a verdict be rendered against the defendant by which his substantial rights have been prejudiced upon his motion in the following cases: ***" --the fourth ground being: "If the court have misinstructed or refused properly to instruct the jury." Section 341 provides that "a judgment shall not be reversed for an error of the court in instructing or refusing to instruct the jury unless the bill of exceptions contain all the instructions given by the court to the jury and unless it shall thereupon appear that the law applicable to the case was not correctly and fairly given to the jury." And section 340 declares that "a judgment of conviction shall be reversed for any error of law appearing on the record when upon consideration of the whole case the court is satisfied that the substantial rights of the defendant have been prejudiced thereby." Sec-280 provides that "upon the trial of criminal or penal prosecutions, either party may except to any decision of the court by which the substantial rights of such party are prejudiced, subject to the restrictions in the next section." And section 282 provides "the exception shall be shown upon the record, by a bill of exceptions, prepared, settled, and signed, as provided in the Code of Practice in civil cases. Under these provisions of the Code, it was held in Buckles v. Commonwealth, 68 S.W. 1084, 24 Ky. Law Rep. 571, not to be necessary to make or save objection in the bill of exceptions to the action of the court in giving or refusing to give instructions. The opinion of the court in that case is based upon the proposition that it is the duty of the court as adjudged in a number of cases to give to the jury the whole law of the case, whether requested to do so or not, and therefore it would be idle to object or except to the action of the court in doing that which it was obliged to do whether requested or not.

But it has never been held not necessary to mention in the motion and grounds for a new trial error of the court in giving or refusing instructions. On the contrary, one of the grounds specified in the Code upon which a new trial may be granted is error of the court is misinstructing...