Thurman v. Commonwealth

• Decision Date: 17 February 1911
• Citation: 134 S.W. 174,142 Ky. 347
• Parties: THURMAN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

134 S.W. 174

142 Ky. 347

THURMAN v. COMMONWEALTH.

Court of Appeals of Kentucky.

February 17, 1911

Appeal from Circuit Court, Bell County.

Sam Thurman was convicted of murder, and he appeals. Affirmed.

O. V Riley, E. N. Ingram, and J. G. Rollins, for appellant.

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

MILLER J.

On September 26, 1910, appellant, Thurman, shot and killed Sam Johnson. Thurman was indicted the next day for willful murder, and his trial set for October 5th. When the case was called on October 6th it was reassigned to October 19th for trial, and it was then tried. The jury found appellant guilty, and fixed his punishment at confinement in the penitentiary for life.

The tragedy occurred in a gambling house conducted by the deceased in Middlesboro, on a Sunday about midnight, or shortly thereafter. Johnson and Thurman, with several other friends of Johnson, had assembled in the latter's room for the purpose of gambling. They had been gambling several hours, and Thurman, evidently being in bad humor by reason of his losses, tore the cards and threw them on the floor. The cards belonged to Johnson, and he remonstrated with Thurman at the same time calling him a vile name; and according to some of the witnesses Johnson started towards Thurman in a menacing manner. Thurman says he pushed Johnson back with his hand to keep him off of him, while some of the other witnesses say Thurman slapped Johnson in the face. Thurman attempted to leave the room, but, in his haste, he stumbled and fell to the floor; whereupon Johnson, who was pursuing him, cut Thurman severely in the back. Friends immediately interfered, one of them holding Johnson in the room, while others carried Thurman down the steps into the yard. Thurman's pistol had been lying upon a bed in the room during the game, and when the fight occurred Alexander, one of the men who escorted Thurman down the steps, procured the pistol in some way and carried it with him into the yard. Thurman knew Alexander had the pistol, and demanded that he give it up. This Alexander refused to do, for fear Thurman would injure some one; but Thurman drew his knife, and, threatening to cut Alexander's throat, Alexander gave him the pistol; Thurman saying at the time that he would kill the man who had cut him. When Thurman recovered the pistol he pointed it towards the second-story window of Johnson's room, evidently for the purpose of firing at Johnson if he could see him; but, as Johnson remained out of sight, Thurman forced open the lower door at the bottom of the steps, bounded up the stairs, and either forced open the door at the top of the stairs, or found it open with Johnson standing directly in the opening. A pistol shot was heard, and when those in the back yard went to the scene they found Johnson stretched upon the floor with a bullet hole through his forehead. He died within a few minutes thereafter. Thurman testified that Johnson struck him with a shovel when he entered the door at the top of the stairs, and that he shot Johnson in self-defense and to prevent the latter from killing him with the shovel. Some of the witnesses testified that a spade or a shovel was found lying on the floor some three or four feet away, while a majority of the witnesses testified that there was a shovel resting against the wall some distance away.

The court instructed the jury upon the law as to murder voluntary manslaughter, and the right of self-defense. The court also defined malice, and gave the usual instruction as to reasonable doubt. No objection is taken to the instructions that were given. It is insisted, however, that the judgment should be reversed upon any one of three grounds, namely: (1) That the court erred in refusing to continue the case on the showing made by appellant in his affidavit; (2) that the court should have discharged the jury for the misconduct of a bystander who talked with several of the jurors during the trial;...