Thornsberry v. Commonwealth
| Decision Date | 09 November 1934 |
| Citation | 256 Ky. 166,75 S.W.2d 1079 |
| Parties | THORNSBERRY v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Floyd County.
John Thornsberry was convicted of manslaughter, and he appeals.
Reversed and remanded for a new trial.
Claude P. Stephens and B. M. James, both of Prestonsburg, for appellant.
Bailey P. Wootton, Atty. Gen., and David C. Walls, Asst. Atty. Gen for the Commonwealth.
John Thornsberry appeals from a judgment convicting him of manslaughter, and fixing his punishment at five years' imprisonment.
It is first insisted that the verdict is flagrantly against the evidence.
The homicide occurred during the 1933 primary election at the Spurlock schoolhouse, in Floyd county, and was the result of a fight between appellant and his two nephews, Bill Justice and Jeff Justice, on one side, and the deceased, Henry Wright, and his two sons, Ernest Wright and Burr Wright, on the other. Some time before the difficulty, and at a time when Henry Wright was not present, Ernest Wright and Bill Justice had a fist fight, and were separated by appellant Jeff Justice, and others. After the fist fight Ernest and Burr Wright joined their father and the three proceeded to the voting place. At that time appellant and his nephews Jeff Justice and Bill Justice, were standing near the schoolhouse. On reaching the schoolhouse Henry Wright engaged in a fight with Bill Justice. During the fight appellant cut Henry Wright with his knife, and Henry Wright died from his wounds. According to some of the witnesses, Henry Wright was fighting with his fists, and did not have steel knucks in his hand. According to other witnesses, including appellant, he was armed with steel knucks, and each of his nephews had a knife in his hand. If it had been made to appear by uncontradicted evidence that the deceased was armed with steel knucks, and was beating Bill Justice at the time he was cut, an entirely different situation would be presented; but in view of the evidence to the effect that the deceased was not armed, but was fighting with his fists, the jury had the right to conclude from the evidence that Bill Justice was not in such real or apparent danger of death or great bodily harm at the hands of the deceased or his son that appellant was justified in taking the life of the deceased. We therefore rule that the verdict is not flagrantly against the evidence.
Another ground urged for reversal is that appellant and others were required to state over appellant's objection that he and others were engaged in a poker game some time prior to the homicide. The record discloses that on the cross-examination and recross-examination of appellant the following occurred:
"Q. 12. What kind of cards were they playing? A. Poker, I thought.
Q. 13. Who was up there on the hill playing poker? A. Bill Justice and me and Green Haywood and Gene Colyer.
Q. 14. Was you playing? *** A. I played a few cards. ***
Q. 31. Who was up there in that poker game? A. Gene Colyer, Green Haywood, and Bill Justice and myself.
Q. 32. Was Bill Justice, your nephew, in the poker game also? A. He was up there.
Q. 33. Who else was up on the hill there and engaged in playing poker with you? A. We was up on the hill there and I believe John Anderson was in the game too.
Q. 34. Can you name anyone else besides John Anderson? A. There might have been more, but that is about all I remember of.
Q. 35. Do you remember what the wager was that day that you played for? Hon. C. P. Stephens (of counsel for defendant): We object to that, Your Honor.
The Court: I will sustain the objection, unless you can connect it up with this case in some way."
Also the following occurred when Bill Justice, appellant's nephew, was on the stand:
"Q. 13. How long did you and your Uncle John stay up there on the hill and engage in that poker game? A. About two and a half hours.
Q. 14. And you was playing for money instead of liquor?
On the...
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Butler v. Commonwealth
...We held this testimony should have been excluded, being not within the exception rule, nor a part of the res gestae. In Thornsberry v. Com., 256 Ky. 166, 75 S.W.2d 1079 (homicide), we reversed because, over objection, and other witnesses were required to go into details as to a poker game i......
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Davidson v. Commonwealth
...Ky. Law Rep. 240, 12 Ky. Op. 233; Sneed v. Com., 236 Ky. 838, 34 S.W.2d 724; Marcum v. Com., 254 Ky. 120, 71 S.W.2d 17; Thornsberry v. Com., 256 Ky. 166, 75 S.W.2d 1079. The things asked about in this case bore upon the question motive for the commission of the crime for which the witness w......
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Kinder v. Commonwealth
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