Walkup v. Com.

• Citation: 20 S.W. 221
• Parties: Walkup et al. v. Commonwealth.
• Decision Date: 17 September 1892
• Court: Kentucky Court of Appeals

20 S.W. 221

Walkup et al. v. Commonwealth.

Court of Appeals of Kentucky.

September 17, 1892

Appeal from circuit court, Metcalfe county.

"Not to be officially reported."

Zack Walkup, Sr., and Zack Walkup, Jr., were convicted of murder and appeal. Affirmed.

Holt C.J.

The appellants, father and son, killed James A. Demonbrow in a fight in 1888. There is evidence tending to show that each side had previously threatened the other, that there was bad blood between them prior to the fatal difficulty, and it is quite evident that neither side was averse to the conflict. The conviction is for murder, and must stand if no error of law prejudicial to the substantial rights of the accused was committed, because the testimony is certainly sufficient to support the verdict, tested by the rule that controls in criminal cases. A continuance was asked upon the ground that an absent witness would state that a threat by one of the appellants against the life of the deceased, testified to by some of the witnesses for the state, was not made. This witness was present at the former term of the court, and was probably then recognized for the term when the case was tried, but it was not entered of record. The threat, if made was not the only evidence of ill feeling upon the part of the accused towards the deceased prior to the killing. Another threat was proven by a brother of the deceased. But conceding that the desired testimony was material, that due diligence had been used to obtain it, and that the presence of the witness could have probably been had in the future, yet the killing had occurred years before, the case had been pending for a long time, several continuances had been granted the accused, and there had been two mistrials. Under these circumstances, the trial court was properly invested with a broad discretion in granting or refusing a continuance, and we cannot say that it was abused.

The statements of the deceased, which were admitted in evidence as dying declarations, were competent. The evidence clearly shows they were made in extremis, and when the declarant had no hope or expectation of recovery, but believed that his dissolution was at hand. Upon the former trial, one William J. Walkup had given certain testimony for the accused. He had testified to threats of the deceased towards them. Subsequently the witness became insane, and was so, and confined in an asylum, when the trial now under consideration...