Tibbs v. Commonwealth

• Decision Date: 01 June 1910
• Parties: TIBBS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

128 S.W. 871

138 Ky. 558

TIBBS v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 1, 1910

Appeal from Circuit Court, Bell County.

"To be officially reported."

Charley Tibbs was convicted of murder, and he appeals. Reversed and remanded.

H. B Jones and J. B. Burnett, for appellant.

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

CLAY C.

Charley Tibbs was indicted and tried for murder. The jury found him guilty, and fixed his punishment at confinement in the penitentiary for life. From the judgment of conviction, he prosecutes this appeal.

The facts in brief are as follows: Appellant was a blacksmith in the employ of the Ralston Coal Company, a corporation engaged in business near the Tennessee line. He started from that company's place of business for Tazwell, Tenn. In going there it was necessary for him to pass through the city of Middlesborough and remain overnight. Early in the evening preceding the morning when the deceased, Charlie Haynes, was wounded, appellant met deceased. Some time later they were joined by Ernest Withrow. These parties first visited one saloon, then another. They drank a quantity of beer and whisky. About 9 o'clock they proceeded to a house of ill fame kept by Julia Elliott. There they met a man by the name of T. C. Anderson. The occupants of the Elliott house were Julia Elliott and her daughters, Clody Sounders, and Fannie Bates. After remaining at this house a while, appellant and his companions went uptown. They again visited several saloons. About midnight they returned to Julia Elliott's. While in the house, Anderson let the deceased have $2. The deceased shook the money in his hands for the purpose of teasing one of the inmates. Appellant said to deceased, "Charlie, let me have that money. I will spend it with them." This the deceased declined to do, and at the same time handed the $2 back to Anderson. According to two of the witnesses present, the appellant said, addressing the deceased, "God damn you, I will settle with you before daylight," or "God damn you, I will get even with you before to-morrow." Other witnesses present claim no such remark was made by appellant. Very soon appellant and his companions were ordered to leave the Elliott house. This they did. As they were leaving, one or two of the witnesses claim that appellant drew his pistol and made the statement that he was going to shoot back into the house through the window. This is denied by other witnesses. After going out of the house appellant lay on the ground and went to sleep. The deceased, with Anderson and Withrow, went to the next house, some 50 or 60 feet away, kept by Nellie Carroll. There they remained for quite a while. Upon leaving the Carroll house, they went to appellant for the purpose of waking him. Anderson says their object was to take appellant to the train which left early that morning. Other witnesses claim that it was for the purpose of taking appellant into the Carroll house to be cared for. When the deceased attempted to wake appellant, and they started in the direction of the Carroll house, appellant, according to Anderson's testimony, arose from the ground and struck deceased with his fist, but immediately apologized for so doing, at the same time shaking hands with the deceased. After some further conversation and after they had walked a few steps in the direction of the Carroll house, the deceased said: "It is all over, now; but you have hurt me, and hurt me bad." Appellant replied that he would hurt him still worse. At the same time he drew his knife from his pocket, and struck deceased over the eye. He struck at the deceased a second time, but missed him. Anderson, who testifies to the foregoing facts, claims that he then struck appellant with his fist and kicked him three or four times on the face and jaw, finally knocking him down and away from deceased. Appellant then arose, and Anderson chased him about 125 yards. Upon returning to the deceased, Anderson found a stranger near him. He asked deceased if that was the man who struck him. The deceased replied that it was not; that Charley Tibbs was the man who cut him. The next morning appellant was found out behind a blacksmith shop by one Andrew Jackson. The latter persuaded appellant to go into the shop and lie down on a buggy cushion. Appellant remained there until Monday morning. This witness claims that, when he aroused appellant, the latter said: "O Lordy, Andy, I expect I done something last night that will get me in trouble." The testimony for appellant is to the effect that he had absolutely no recollection of any difficulty with the deceased. He remembered taking several drinks, and that he left the Elliott house. Following that he remembered nothing until awakened by Jackson.

Shortly after the deceased was cut, which occurred about 4 o'clock on Sunday morning, he went into the house kept by Nellie Carroll. There the wound was washed and tied up with an old rag. Dr. Evans, who passed the Carroll house about 7 o'clock, was called in. He examined the wound, and did not consider it fatal. Deceased remained at the Carroll house all day and until the next morning. He then went to the station, about a half mile, distant, unattended. From there he took the train to Tazwell, Tenn. During all this time there was no one with him. After reaching his home at Tazwell, a local physician was called in, and the wound again dressed. A member of the faculty of Tennessee Medical College, of Knoxville, was sent for, and he came and operated upon deceased. According to his testimony, the skull was fractured. The deceased gradually grew worse, and died a few days later from blood poison. According to one of the physicians, who testified for appellant, the skull was not fractured.

In view of the fact that we have concluded that the judgment must be reversed for other reasons, we deem it unnecessary to determine whether or not the court erred in refusing to grant appellant a continuance. The other two errors relied upon are the admission of the dying declarations of the deceased, and the failure of the court to permit appellant to introduce evidence to the effect that the wound was not of itself dangerous-that is, calculated to endanger or destroy life-and that the deceased died from the effect of improper treatment. Nellie Carroll stated that deceased, after making the statement that he did not think he would get well, but expected to die, detailed the circumstances of the tragedy and claimed that appellant was the man who cut him. Another witness corroborates this statement of Nellie Carroll. It appears, however, that the...