Wells v. Commonwealth

• Decision Date: 05 June 1890
• Citation: 13 S.W. 915
• Parties: WELLS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

13 S.W. 915

WELLS v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 5, 1890

Appeal from circuit court, Henderson county.

"To be officially reported."

John Young Brown, for appellant.

P. W Hardin, for the Commonwealth.

HOLT J.

The appellant, James Wells, who is but 16 years old, has, upon a charge of murder, been convicted of manslaughter for the killing of Eugene Connell, who was 5 years his senior, and his punishment fixed at 12 years' confinement in the penitentiary. The trouble occurred over a ring, which the deceased had given to a young lady, and which she had loaned to the accused. The killing took place on April 6, 1890. He was indicted on April 14, 1890, brought into court from the jail to answer the charge on that day, and the case set for trial on April 19, 1890; he being remanded to jail in the mean time. Upon the last-named day his counsel asked a continuance of the case upon the ground that he had been constantly confined in jail, and indicted at that term of the court, and that the principal witness for the commonwealth had refused to talk with them. The court informed them that these reasons were insufficient; and they, recognizing doubtless, that they could not successfully complain of its opinion, then, and without objection to its being filed offered the affidavit of the accused, and again asked a continuance. It states: "Hillery Moffett is not present. Spa. was issued for this witness, and placed in the hands of the sheriff of Henderson Co. yesterday, as soon as it was learned by affiant or his attorneys what could be proved by him. He is a resident of Daviess Co., Ky. but has been in Henderson for several weeks, and is now in said county, as affiant verily believes. The spa. is returned not found. The witness is not absent by consent or procurement of affiant. Affiant says that he can prove by said witness that he had a conversation with Geo. Howard, who is the principal witness for the prosecution, and who was present and saw the difficulty between affiant and Connell after the coroner's inquest was held, and said Howard stated that affiant did not draw his pistol till after Connell had told affiant that he had to fight, and had struck him with part of a barrel-head, knocking his hat off and badly cutting his head; and that then, and not till then, did affiant draw and fire his pistol at Connell. Affiant says that what he can prove by said witness is true. Affiant says the witness Howard has persistently refused to talk with his attorneys and that his said attorneys have had no opportunity to talk to the other witnesses for the commonwealth. Affiant says that he can procure attendance of said witness at next term of this court, and this application is not for delay." The court then inquired of the accused and his counsel if they could give any information of the whereabouts of the witness. There was no response. Then the court inquired twice if there was any one in the court-room who knew the witness or his whereabouts. No answer was returned. The counsel for the accused, for the purpose, as they said, of removing suspicion, then asked a certain person if he knew the witness, and he replied that he did, and had seen him a few days before. The court then, over the objection of the appellant, swore this person, and he further stated that he did not know where the witness lived. At this point the state's attorney said that the witness Howard knew Moffett, but did not...