14 Ky.L.Rptr. 166
Court of Appeals of Kentucky.
Hormsba. v. Commonwealth.
June 11, 1892.
ACTION: Affirmed.

Appeal from circuit court, Owsley county.
"Not to be officially reported."
Defendant was convicted of killing his child, and he appeals.

The appellant was sentenced, upon conviction, to the penitentiary for the term of five years, for killing his child. He has appealed. The appellant is charged with having murdered his child by whipping it. Clara Field testifies that about two or three weeks before the appellant sent the child to Clay county it was severely whipped, and switch marks were upon it, and "blood was slightly drawn above the penis;" that its privates were swollen "as large as a goose egg." Also that the child at the time was sick and weakly; that its bowels were disordered. Fred Adams testified that about the time referred to by Clara Field he heard licks and a noise at appellant's house, like some one whipping another, and he heard the appellant's voice, and saw him come out of the house; that after that he saw the child, and it had switch marks upon it; that some days afterwards, he examined the child, and there were numerous marks upon its back, and "above its privates and penis, and the testicles were swelled;" that the appellant requested the witness to take the child to Clay county, to its grandfather's, but he refused to do so, "because of the weakly condition of the child, and its severe whipping," etc. Mrs. Adams testified that she saw the child before it was taken to Clay county; that "it had been terribly whipped," etc. Nancy Young testified that she "saw the appellant, a few days before the child was taken to Clay county, take the child out of the house, and take a switch as large as her finger, and whip the child with it twenty or more licks;" that the whipping caused the child to fall down; that it was whipped "because it had befouled its bed;" that it was sick and weakly, and was afflicted with "diarrhea;" that "the whipping was very hard;" that "afterwards large whelks raised on the child." W. B. Bullock testified that about three days before the child was sent to Clay county he and Dr. _____ examined it; that they counted 22 marks on its body,-one above its privates; that the child was swollen. Dr. Breeding testified that he examined the child with W. B. Bullock; that they discovered about 20 switch marks on the child's body, etc.; that "the shock caused by a severe whipping might be dangerous to a weakly and sickly child; that such a shock, acting on the nervous system, might produce instant death, or it might cause gradual decline;" that the child was "badly whipped, and the bruises were sunk to or near the loins of the child. It was thin and feeble, and had diarrhea." The commonwealth introduced evidence showing that the appellant sent this beaten and sick child to its grandfather's, (where it died in a few days,) a distance of 18 miles, on a cold and rainy December day. The appellant objected to this evidence, because it was not included in the allegations of the indictment. But it was competent as bearing upon the question of malice. The appellant's excuse for whipping his child is that he wished to break him from the habit of befouling his bed. But it seems to us that this habit could not have been avoided by the sick and afflicted child of only six years of age. It also appears that the child was cruelly, inhumanly, brutally whipped by a brutal father, which caused its death; and he has great reason to rejoice over the fact that he escaped the death penalty. The error complained of in the instructions, if it be an error, in view of the facts in the case, was not prejudicial to the substantial rights of the appellant.

The judgment is affirmed.

Ky.App. 1892.
Hormsba. v. Commonwealth.
19 S.W. 845, 14 Ky.L.Rptr. 166


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