Triplett v. Commonwealth
| Decision Date | 04 October 1932 |
| Citation | 245 Ky. 149 |
| Parties | Triplett v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
2. Criminal Law. — Conviction on conflicting evidence cannot be disturbed on appeal.
3. Criminal Law. — That witnesses for defendant were more numerous than those for commonwealth held not of itself to warrant interference with verdict.
4. Criminal Law. — Credibility of witnesses and weight to be given testimony held for jury.
5. Criminal Law. — Verdict of guilty will not be disturbed, unless it is so palpably against evidence as to shock conscience and compel conclusion that verdict was result of passion or prejudice (Criminal Code of Practice, sec. 271).
6. Homicide. — Evidence sustained voluntary manslaughter conviction.
7. Criminal Law. — The commonwealth's attorney in preliminary statement stated defendant gave undue attention to deceased's wife, which aroused deceased's feelings against defendant, held not reversible error, although no evidence was offered supporting it (Criminal Code of Practice, sec. 220).
8. Criminal Law. — Commonwealth's attorney's closing argument regarding defendant's interest in deceased's wife after shooting held not reversible error.
Argument of commonwealth's attorney that defendant when he came back to home of deceased on night of shooting was not interested in deceased, but in his wife, and that defendant went where she was because he wanted to see her, and get her to stand in with him in criminal prosecution, was not reversible error, since statement was authorized by evidence, except so much of it as was attorney's mere opinion, and, while it is a rule of practice that commonwealth's attorneys should avoid expressions of opinion not based on evidence, the fact that such an opinion is expressed affords no ground of reversal.
9. Criminal Law. — Commonwealth's attorney's closing argument containing facts, unauthorized by evidence, tending to show malice of defendant at time of killing, held not reversible error, where jury found defendant guilty of voluntary manslaughter.
Closing argument of commonwealth's attorney that, at time deceased was calling for his wife just before the killing, his wife was on a hill, and that there was no doubt that defendant was up there on the hill with her, was not reversible error, for, even if it was improper for the attorney to use such language, his doing so was not so prejudicial to defendant's substantial rights as to warrant a reversal, since the verdict manifested the fact that the jury did not find that defendant was actuated by malice in the commission of the offense.
10. Homicide. — Deceased's dying declaration that he was not doing a thing in the world and that no word had passed between him and defendant held not incompetent as mere opinion.
11. Criminal Law. — Admission of deceased's statement to effect that some one came on to porch after he was wounded held not reversible error (Criminal Code of Practice, secs. 340, 353).
Admission of statement was not reversible error as against objection that commonwealth's evidence showed that deceased's knife was in his pocket when he was searched after he was shot, while defendant's evidence showed knife was found on porch where he was lying after he was shot, and that therefore the statement tended to show that defendant was instrumental in placing the knife on the porch, since, to authorize a reversal, incompetent evidence must be such as is reasonably certain to prejudice the rights of accused, and deprive him of a fair trial, and the evidence complained of was not so important and of such weight that it could be presumed that it was prejudicial to the substantial rights of defendant.
12. Homicide. — Where defendant's theory was that he knocked deceased down while deceased was assaulting defendant's brother, instruction on theory of defendant's right to protect home of another brother where homicide occurred held properly refused.
Instruction was properly refused, since the court submitted to the jury the question of the danger or apparent danger of the defendant, and also of his brothers from the assault of the deceased, and it was not claimed and there was no showing that deceased made any demonstration toward the brother at whose home the homicide occurred or any inmate of his home.
Appeal from Morgan Circuit Court.
S. MONROE NICKELL, FLOYD ARNETT, J. BLAINE NICKELL and H.C. ROSE for appellant.
BAILEY P. WOOTTON, Attorney General, and FRANCIS M. BURKE, Assistant Attorney General, for appellee.
Affirming.
Normal Triplett, Beech Triplett, and Oakley Triplett, brothers, were indicted in the Morgan circuit court, charged with the crime of murder committed by the killing of Noah Lykins. They were tried together. Beech and Oakley were acquitted. Normal was, by the verdict of the jury, found guilty of the crime of voluntary manslaughter, and his punishment fixed at ten years in the penitentiary. From the judgment sentencing him, he appeals, insisting that the verdict is not supported by the evidence, and is the result of passion and prejudice; that the court erred in refusing to exclude from the consideration of the jury certain statements made by the attorney of the commonwealth; in the admission, as part of the dying declaration, certain statements made by the deceased, and failing to give to the jury the law of the case.
To consider and properly dispose of his contentions, a summary of the evidence is required. The deceased, Noah Lykins, was the husband of Pearl Sebastian Coffee Lykins. They resided on a tract of land owned by her. Oakley Triplett was a tenant residing with his family on the same tract of land, within a short distance from the residence occupied by Noah and wife. John Mart Sebastian, the father of the wife of Noah Lykins, occupied a residence a short distance from the home of Noah Lykins and wife. Bill Coffee lived in the vicinity of Noah Lykins. On a certain Saturday night in September, 1931, a dance was given by Bill Coffee at his home, which was attended by a considerable number of people, including Noah Lykins and wife, the appellant, and his codefendants. Intoxicating liquors were present and imbibed by many of those attending the dance, including Noah Lykins and Bill Coffee, who became intoxicated. From an early hour in the night until midnight, the dance continued, when those present began to depart for their respective homes. When leaving the dance Noah Lykins and wife were together, she walking in front; he indulging in the use of profane and offensive language addressed to her. She separated from him and disappeared under the cover of darkness. He continued in the direction of his home, and, on reaching it, searched it for her; failing to find her, he went to the home of Oakley Triplett, and, as he approached it, he was cursing and still indulging in the use of epithets directed at his wife.
After a former marriage to each other they had separated; she was granted a divorce and married a Mr. Coffee, who was killed by Noah Lykins, for which he was convicted and sentenced to the penitentiary. While he was confined in the penitentiary, and his wife was the widow of Coffee, the appellant, Normal Triplett kept company with her. After Noah was discharged from the penitentiary, he and she again married. On the night of the killing, and after Noah Lykins and wife had gone away from the home of Coffee, Oakley Triplett informed Normal Triplett that Noah was talking about him, and stated to Normal that Noah had killed one man and "lets get him first." Soon thereafter the appellant and his two brothers left the home of Coffee and went to the home of Oakley Triplett, which was so close to the home of Noah Lykins that they could hear Lykins calling for and cursing his wife. Normal Triplett and Beech Triplett, on arriving at Oakley Triplett's, stopped at the woodyard While there one of them picked up an ax and carried it onto the porch where Noah Lykins immediately came, still cursing and using indecent epithets with reference to his wife. The theory of the commonwealth as to how the killing occurred is aptly stated in the dying declaration of Noah Lykins, which is in this language:
The appellant's version of the occurrence is best stated by him in these words:
"Noah Lykins came toward the house; just before he got to it, about the gate, he holloed for Pearl, and said: `Oh, Pearl,' and Oak says, `She ain't here,' and he called her a bad name and said, `I am going to kill you,' and said something like that Roman nose son-of a bitch's whore, and Oak said `Noah go on off, my wife is sick and don't come in, Pearl is not here'; he came right up on the porch and as he entered it he said, `I have cut one God Damn man's head off and don't care to cut off ten more heads,' and Beech had got up and let him get there, and he walked up on the end of the porch and Beech backed off in front of the door and as he walked up on the porch, Beech said, `He is going in with a knife open, and I was at the other end of the house, just turned the corner from the porch, * * *' and he started for the door when Beech said that he had started to go in the house on my brother and his family, as he started toward the door, and Beech beat me to the door and just about the time Beech got to the door, Noah whirled back on Beech and Beech said, `Don't cut me,' and Oak said, `Normal don't let him cut Beech,' and he ran out the door about that time, just cleared the door, and had a knife in his right hand and was coming on Beech and as he cleared the door, coming out with his...
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