Wheat v. Commonwealth

• Citation: 118 S.W. 264
• Parties: WHEAT et al. v. COMMONWEALTH.
• Decision Date: 20 April 1909
• Court: Court of Appeals of Kentucky

118 S.W. 264

WHEAT et al. v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 20, 1909

Appeal from Circuit Court, Boyle County.

"Not to be officially reported."

Thomas Wheat and another were convicted of voluntary manslaughter and they appeal. Affirmed.

Jno. W Rawlings and Robt. Harding, for appellants.

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

CARROLL J.

Thomas and Sam Wheat, the appellants, under an indictment charging them with the murder of Rolla Davis, were convicted of voluntary manslaughter and their punishment fixed at confinement in the penitentiary for a term of 11 years. They ask a reversal upon the ground that the court erred in the admission of evidence and in giving instructions.

Briefly the facts are these: Tom Wheat and Rolla Davis were bystanders at a game of baseball in progress at Perryville, Ky. Sam Wheat, a brother of Tom, was playing second base. Tom Wheat was very drunk and disorderly, and Davis, who was standing near the home base, said to him: "You ought not to behave in this way. You have had better raising." And thereupon Tom said to Davis: "You are a G___ d___ cowardly s___ o___ b___ if you don't hit me." When this most offensive of epithets was applied to Davis, he struck Tom in the face with his open hand or fist, and continued to strike or attempt to strike Tom as he backed away from him. This altercation only lasted a few minutes, as the combatants either quit quarreling and fighting or were separated. While this quarrel was in progress, Sam Wheat left the second base where he was stationed, and came near the place where Tom and Davis were, but did not take any part in the affray at that time. Soon after this Tom Wheat again approached Davis, who was near the home base, and renewed the trouble by making some remark to Davis and striking him in the face. When he struck Davis in the face, Davis hit him, and probably knocked him down--at any rate, Tom backed or ran out in the diamond, Davis following him, striking or attempting to strike him with his hand or fist. When they had gone in this way some 60 or 70 feet from the home base, Tom retreating and Davis following him, Sam Wheat left the second base with a bat in his hand and started towards them. From this point on there is marked conflict in the testimony. The witnesses for the commonwealth say that, when Sam left his base, some one in the crowd hallooed to Davis "to look out, Sam was coming," and that, when Davis looked around to see where Sam was, Tom Wheat, who had a baseball bat in his hand, struck him on the head with it, and knocked him down, and while he was down on his knees and elbows Sam came up and hit him an awful blow on the head with the bat that he had in his hand, and that Tom told Sam to kill him. On the other hand, Sam Wheat and the witnesses in his behalf testify that Tom did not hit Davis with a bat or have a bat in his hand at all until after Sam had struck Davis. They further testify that Davis had an open knife in his hand, and was standing up in the act of cutting or striking Tom with the knife when Sam hit him with the bat. Sam states that he struck Davis with the bat in order to prevent him from cutting or stabbing his brother. All of the witnesses agree that Davis had a knife in his hand, but there is difference of opinion as to when he took it out of his pocket, and whether or not it was open. Looking at the testimony from the standpoint of the commonwealth, the difficulty was provoked and commenced by the conduct of Tom Wheat, and the striking of Davis by Sam was inexcusable. On the other hand, if the testimony of the Wheats and in their behalf is true, Tom Wheat did not strike Davis with a bat; and Sam only struck him in an effort to save the life of his brother. It is not, however, necessary that we should...