Wiley v. Commonwealth

• Decision Date: 19 April 1929
• Citation: 229 Ky. 63,16 S.W.2d 496
• Parties: WILEY v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

16 S.W.2d 496

229 Ky. 63

WILEY v. COMMONWEALTH.

Court of Appeals of Kentucky

April 19, 1929

Appeal from Circuit Court, McCracken County.

Fannie Wiley was convicted of manslaughter, and she appeals. Affirmed.

Crossland & Crossland, of Paducah, for appellant.

J. W Cammack, Atty. Gen., and James M. Gilbert, Asst. Atty. Gen for the Commonwealth.

REES J.

Appellant Fannie Wiley, indicted for murder, was convicted of manslaughter, and her punishment fixed at confinement in the penitentiary for a period of ten years. She seeks a reversal of the judgment because, as she claims: (1) The court erred in failing to instruct the jury on the law of involuntary manslaughter; (2) she was surprised by the introduction of a witness for the commonwealth whose name did not appear on the indictment; and (3) the attorney for the commonwealth was guilty of misconduct prejudicial to her substantial rights.

The appellant, a negro woman, and the deceased, Jeff Larkins, a negro man, had been living together in Paducah, Ky. for about a year. On the day preceding the killing, which occurred on April 10, 1928, they quarreled over money matters, but appellant claimed this difficulty had been adjusted, and that at the time the shooting occurred they were on friendly terms. During the afternoon of April 10, 1928, deceased went to the home of a neighbor. Appellant followed him there, and they returned to their home. Clara Lucas, who lived in the house adjoining the house occupied by appellant and Larkins testified that Larkins stopped on the porch, and the appellant, who was angry, walked back and forth for 15 or 20 minutes, cursing and abusing him, and with her hand in a pocket of her coat and on a pistol, part of which was exposed. Among other statements made by appellant, the witness heard her say: "A s ---- of a b ---- like you ought to be killed." The deceased did not appear to be alarmed by the threats of appellant and finally walked in the house. Appellant went to the rear of the house and entered, and a few minutes later the report of a gun was heard, immediately after which the deceased came out of the house and fell on the porch. His shirt was on fire, indicating that the gun had been fired at close range. D. S. Ransaw, a negro preacher, testified that he passed the house a few minutes before the killing, and heard the appellant say to the deceased: ""I am going to kill you, you G ---- d ---- black s ---- of a b ----."

Appellant claimed that the killing occurred under the following circumstances: She and the deceased agreed to go walking; he observed her pistol lying in a drawer, picked it up, and said, "I am going to carry this pistol with me." He was somewhat under the influence of liquor, and, knowing that he was reckless with firearms when drinking, she endeavored to persuade him to leave the pistol in the house. She attempted to take the pistol from him, and during the scuffle that followed it was accidentally discharged.

The trial court gave instructions on murder, voluntary manslaughter, and accidental killing. The sole complaint of the instructions is the failure of the court to instruct on involuntary manslaughter, and counsel for appellant in their brief cite numerous cases in support of their contention that such an instruction should have been given. However, an examination of the cases cited discloses in each instance that the killing occurred as the result of the reckless use of firearms, or of the commission of some other unlawful act. Involuntary manslaughter has been defined as "the killing of another in doing some unlawful act, but without an intention to kill." Trimble v. Commonwealth, 78 Ky. 176; Lewis v. Commonwealth, 140 Ky. 652, 131 S.W. 517; Maulding v. Commonwealth, 172 Ky. 370, 189 S.W. 251; Commonwealth v. Owens, 198 Ky. 656, 249 S.W. 792.

The appellant was the only witness who testified as to what occurred immediately before and at the time the pistol was discharged. According to her testimony, she was engaged in no unlawful act at the time; she was merely attempting in a friendly way to prevent the deceased from carrying the pistol when they left the house; she was not reckless or careless in her effort to take it from his possession. It was her contention that the killing was purely an accident, without any culpability on her part, and her theory of the case was presented to the jury by a proper instruction. Under the...