Wilson v. Commonwealth

• Decision Date: 08 March 1932
• Citation: Wilson v. Commonwealth, 243 Ky. 333, 48 S.W.2d 3 (Ky. Ct. App. 1932)
• Parties: WILSON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

48 S.W.2d 3

243 Ky. 333

WILSON v. COMMONWEALTH.

Court of Appeals of Kentucky

March 8, 1932

Appeal from Circuit Court, Breckinridge County.

Burnie Wilson was convicted of manslaughter, and he appeals.

Affirmed.

Samuel H. Monarch, of Hardinsburg, for appellant.

Bailey P. Wootton, Atty. Gen., and H. Hamilton Rice, Asst. Atty Gen., for the Commonwealth.

STANLEY C.

Under an indictment charging the appellant, Burnie Wilson, and his brother, Dave Wilson, with the murder of Oscar O'Bannon on a separate trial he was found guilty of manslaughter and sentenced to two years in the penitentiary.

It appears there was ill feeling between these two brothers and the deceased and his brother, Clark O'Bannon.On a Sunday morning in September, 1930, in the village of Harned, it appears that Clark O'Bannon came down the road near the front of a store conducted by the appellant, before which Dave Wilson was standing whittling on a piece of wood.A fight between these two men occurred, and the evidence for the commonwealth was that the appellant joined in the fight and knocked Clark down.Either the blow or the fall on a rock rendered him unconscious.It is also testified that while in that condition Dave Wilson stamped him.About that time Clark's brother, Oscar O'Bannon, the deceased, came up and began shooting at Dave Wilson.Several shots took effect, but not so as to incapacitate him.When his pistol was emptied he started away and fell, and both Dave and Burnie ran to him.

A number of witnesses say that both men struck him several blows, each having a piece of iron in his hand, and also that they kicked the prostrate man.Some witnesses say they could not tell what it was that Burnie had in his hands with which he struck the fallen man.O'Bannon's skull was badly fractured and he lived only a few minutes after the doctor arrived to attend him.He was beaten to death.

The defendant and several witnesses contradict the evidence of the commonwealth.Their testimony is that the appellant Burnie Wilson, intervened as a peacemaker in the fight between his brother, Dave, and Clark O'Bannon; that he never mistreated the man in any way.Also that he was performing the same office during the fatal fight between Dave Wilson and Oscar O'Bannon.Their testimony is that Dave struck the deceased with a short piece of iron in self-defense and that the appellant never struck him at all.

The court instructed the jury on murder and manslaughter committed either directly by the appellant or by aiding and abetting his brother.Counsel argue that he was entitled to further instructions covering striking and wounding, both maliciously and in sudden heat of passion or sudden affray, and also on assault and battery.The evidence did not warrant any of those instructions.There was no separate attack or unconnected relation between the appellant and his brother such as appeared in Gill v. Commonwealth,235 Ky. 351, 31 S.W.2d 608; or Pergram v. Commonwealth,241 Ky. 387, 44 S.W.2d 277.

According to the evidence tending to prove the appellant guilty, he jointly and actively participated with his brother, and both men were raining blows upon the deceased at the same time and death ensued from injuries thus inflicted.According to the defendant and his witnesses, he never struck the man at all or aided his brother in any way.While it is the duty of the court to give the jury the whole law applicable to every state of the case supported by the evidence, it is not necessary that instructions should be given relating to a theory of guilt or innocence which finds no support in the evidence.Daniel v. Commonwealth,198 Ky. 158, 248 S.W. 511;Day v. Commonwealth,173 Ky. 269, 191 S.W. 105.If the jury believed the evidence of the commonwealth, the defendant was guilty of murder or manslaughter, whether it was his blow or his brother's blow that caused the death, for there was a clear concert of action, and it is the law that each individual whose will contributed to the wrongdoing is responsible for the whole the same as though performed by himself alone.Philpot v. Commonwealth,240 Ky. 289, 42 S.W.2d 317.

In his motion for a new trial, the defendant charged that the jury had not been kept together during the night as is required by section 244 of the Criminal Code of Practice.In a supporting affidavit, the defendant stated he had no knowledge or information of that alleged fact until after the rendition of the verdict.When a defendant has knowledge of a separation of the jury and makes no objection at the time, he will be deemed to have consented thereto.Vinegar v....