18 Ky.L.Rptr. 657
Court of Appeals of Kentucky.
Nov. 12, 1896.
ACTION: Affirmed.

Appeal from circuit court, Knox county.
"Not to be officially reported."
James R. Sawyers was convicted of manslaughter, and appeals.

Appellant was convicted of the crime of manslaughter under an indictment in the Knox circuit court for the murder of Robert Burnsides, and sentenced to confinement in the penitentiary for 21 years. The parties were young men, and appear to have been entirely friendly until a few moments before the fatal affray. They, with others, were seated about a stove in the storehouse of a relative of appellant, when Burnsides, after eating some crackers and a bit of cheese, called for water, with which he rinsed his mouth, and spit it towards the stove, but nearer to the feet of appellant, some of it probably striking his feet or legs. Sharp words followed, and the act of spitting the water was repeated several times by Burnsides, accompanied with insulting language. The parties soon left their chairs and clinched, the appellant cutting and thrusting with a small pocketknife, and Burnsides striking with a beer glass, from which he had been drinking water. After separation it was found that Burnsides had been cut a number of times in the chest and abdomen, while appellant was bruised and cut about the head with the glass. The former died in a few days from his wounds.

Under the most favorable construction of the somewhat conflicting proof, the accused was guilty of manslaughter; and, if the testimony of one or more of the witnesses for the state be credited, to the effect that the accused rushed on the deceased, and cut him while the latter was doing nothing beyond using provoking language, the crime might well have been pronounced a murder. Upon this theory of the case, it was not improper to give an instruction on the subject of murder, and this disposes of the first error complained of by appellant, and the only one complained of as to the instructions.

The second complaint is that the crowd was permitted by the court to make demonstrations of approval by applause and laughter while the attorney for the state was addressing the jury. No decision of the court was made touching this matter, however, and we learn it for the first time in affidavits filed on the motion for a new trial. We will consider this alleged error in connection with the third and only remaining ground of complaint, to wit, that John Bright, one of the jurors, had expressed his conviction, prior to the trial, that the accused was guilty of murder, and ought to be hung. This is also shown for the first time by affidavits filed on the motion for a new trial. So that, if error were committed by the court in respect to either of these complaints, it was committed in overruling the motion for a new trial, and error in such respect is not the subject of exception. No decision was made by the court during the trial touching either the juror's competency or the misconduct of the crowd. It is proper to add that counter affidavits disclosed that the trial judge was not remiss in preserving quiet and rapping for order when the confusion complained of occurred, and affidavits denying and explaining the alleged expressions of the juror were also filed and considered by the trial judge, in whose discretion this matter rests under the provisions of our law.

Judgment affirmed.

Ky.App. 1896.
38 S.W. 136, 18 Ky.L.Rptr. 657


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