Young v. Commonwealth

• Decision Date: 04 May 1928
• Citation: 6 S.W.2d 269,224 Ky. 334
• Parties: YOUNG v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

6 S.W.2d 269

224 Ky. 334

YOUNG v. COMMONWEALTH.

Court of Appeals of Kentucky

May 4, 1928

Appeal from Circuit Court, Bell County.

John Young was convicted of manslaughter, and he appeals. Affirmed.

J. G Rollins, of Pineville, for appellant.

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

REES J.

Appellant was convicted of manslaughter under an indictment charging him and his son, Frank Young, with the murder of Ed Bingham. The indictment in the first count charged a conspiracy, and in the second count it charged alternately John Young and Frank Young as principal and the other as aider and abettor. The court in the instructions submitted to the jury all these phases of the case. Appellant's punishment was fixed at confinement in the penitentiary for a period of 2 years. His son and codefendant had theretofore been tried and convicted of manslaughter, his punishment being fixed at confinement in the penitentiary for a period of 10 years. The judgment in his case was affirmed on appeal to this court in Young v Commonwealth, 214 Ky. 475, 283 S.W. 431.

Appellant seeks a reversal of the judgment on the grounds that incompetent evidence was admitted over his objection; that the instructions are erroneous; and that the verdict is not supported by the evidence.

The evidence as to what occurred immediately before and after the shooting that resulted in the death of Bingham is substantially the same as that introduced at the trial of John Young, and, as the facts are fully set out in the opinion in Young v. Commonwealth, supra, we will not incumber this opinion with a restatement of them here.

Malinda Bean, a witness for the commonwealth, testified that a month or so before the homicide the appellant delivered a load of coal to her, and in the course of a conversation told her he had had trouble with Ed Bingham and that he threatened to have Bingham killed or run out of the country. In relating what appellant said in regard to the trouble he had had, the witness sometimes quoted him as referring to the Binghams and sometimes to Ed Bingham, but it is clear from her testimony that his animus was directed toward the latter. This testimony was competent to show the state of appellant's feelings and to prove motive on his part. Commonwealth v. Caldwell, 223 Ky. 65, 2 S.W.2d 1055; Childers v. Commonwealth, 161 Ky. 440, 171 S.W. 149.

Lizzie Bingham, widow of Ed Bingham, testified that on a number of occasions prior to the homicide she and her husband had altercations with appellant, resulting chiefly from what she described as the use of vulgar talk in her presence by appellant, and that she had a number of warrants issued for appellant. The chief objection urged to her testimony is that she failed to give the exact language claimed by her to have been used in her presence by appellant and referred to by her as vulgar, and it is insisted that the court erred in refusing to exclude her testimony. The purpose of this testimony was to show the state of feeling existing between the parties, and the exact language used by appellant was not material. Whatever it may have been it was such as to create trouble between him and the deceased and led to his arrest on a warrant caused to be issued by deceased's wife. The jury could not have been misled to appellant's prejudice because the language claimed to have been used by appellant was not given by the witness, but was referred to by her as vulgar.

Matt Hoskins, a witness for...