Williams v. Commonwealth

• Decision Date: 21 May 1929
• Citation: 17 S.W.2d 706,229 Ky. 580
• Parties: WILLIAMS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

17 S.W.2d 706

229 Ky. 580

WILLIAMS v. COMMONWEALTH.

Court of Appeals of Kentucky

May 21, 1929

Appeal from Circuit Court, Magoffin County.

Morris Williams was convicted of malicious shooting and wounding with intent to kill, and he appeals. Affirmed.

Leebern Allen, of Campton, and E. B. Arnett, of Salyersville, for appellant.

J. W Cammack, Atty. Gen. (Douglas C. Vest, of Frankfort, of counsel), for the Commonwealth.

CLAY J.

Morris Williams was convicted of malicious shooting and wounding with intent to kill, and his punishment fixed at imprisonment for two years. He appeals.

According to the evidence for the commonwealth, the shooting took place near the home of Earn Salyer on Oakley creek in Magoffin county about 11 o'clock at night. Fred Howard, the prosecuting witness, had been at the home of Roll Salyer. There were present there Floyd Carpenter, Earn Salyer, and Roll Salyer. After remaining there about 15 minutes, he and Gracie Salyer started up the road to Earn Salyer's. While walking up the railroad he saw some one going toward the track. When about 20 feet away he saw appellant standing with his pistol on him. When appellant raised his pistol Gracie jumped over on the side of the track. Appellant fired the first shot and hit him in the breast. At the time he did not have a pistol in his hand. When the shot struck him he threw his hands to his breast. Appellant then fired a second shot. After appellant fired the second shot, he (witness) got his gun and fired four shots. Appellant then started to run and fired three shots over his shoulder. He had not said anything to appellant or attempted to do anything to him prior to the time that appellant began firing. The bullet did not come out, but lodged in his body. The bullet weakened him, and he was carried to the Paintsville hospital, where he was treated for about 8 days. While there an X-ray picture was taken. Gracie Salyer's evidence was substantially the same as that of Howard. She further stated that after the first shot was fired she went into the house, and at the time he was shot Howard did not have a pistol in his hand. Mrs. Earn Salyer, another witness for the commonwealth, testified that at the time of the shooting she was standing in the door and saw appellant shoot Howard, Gracie Salyer was with him, and she did not see any pistol in Howard's hand. Fred Howard was not doing anything at the time.

On the other hand, appellant testified that he saw two people, a man and a woman, coming about 25 feet away. When they got a little nearer, Howard tore loose from Gracie Salyer and jumped off the railroad. She grabbed him by the arm and said "Don't do that." Howard then jerked loose, and Gracie Salyer ran in the house and jerked Lawrence Salyer inside the door. Howard then walked about three steps toward him and fired two shots, which came near knocking him down. He then fired five shots, and it was over in a second. At the time he did not know who he was shooting at, but thought it was Floyd Carpenter. He shot in order to save his life. Grace Salyer was in the house at the time when the first shot was fired. After the shooting he went about 100 yards above Earn Salyer's house. He afterwards learned that somebody had been shot. He had started home and did not think about having any trouble, and would not have had it if it had not been forced on him. Lawrence Salyer, a boy about 15 years of age, testified that just before the shooting he saw Fred and Grace walking down the road. Appellant stepped out and said he was going home. When he reached the railroad Grace and Fred came up. Grace said, "Lord have mercy, don't do that." She then jerked witness in the house and the shooting began. Grace was in the house while the shooting was going on. Fred Cole testified that he was sitting in the house. The first he heard was Gracie halloo, "Don't do that." She was near the door when the shooting began, and jerked Lawrence Salyer in the door. The door was closed and the shooting was soon over with. She was not in the house when the first shot was fired, but was near the door on the outside and was coming in.

It is suggested in brief that appel...