27 Ky.L.Rptr. 137
Court of Appeals of Kentucky.
Jan. 24, 1905.
ACTION: Affirmed.

Appeal from Circuit Court, Knox County.
"Not to be officially reported."
Nat Helton was convicted of manslaughter, and appeals.

This appeal is prosecuted from a conviction of manslaughter. Appellant was constable of district No. 4 in Knox county. He had in his hands for collection a capias pro fine against David Fletcher for $5 and costs. In attempting to execute the writ he arrested Fletcher, but before starting with him to the county jail he suffered Fletcher to go to his home, ostensibly to carry some article of merchandise for the use of his family. A brother of David Fletcher and one Brock, a boarder at the house of the person arrested, went along. Fearing some difficulty, appellant summoned his nephew, Jay Helton, to assist in executing the writ. There was some talk, as the parties went along to the house, indicating that Fletcher would not go to jail. Whether it was to the effect that he would resist the officer by force, or whether he would settle the fine and costs by payment after he got to his house, there is a conflict in the evidence. At the house David Fletcher took a pistol holster, but without the pistol, and buckled it on his person. The officer expostulated with him, and told him that, being a prisoner, he would not be allowed to carry arms with him. Fletcher went to his trunk, which was in the room, and started to raise the lid. Whether this act was to get a pistol from the trunk, as claimed by appellant, or to get the money, or for some other purpose, as claimed by the prosecution, there is a sharp conflict of evidence. The officer and his deputy say that the prisoner raised the trunk lid, grasped a pistol that was in the trunk, and presented it at the deputy, when appellant and the deputy began shooting at him, killing him instantly, the shots fired by appellant taking effect in the back, and in the back of the head. When the shooting began, Tom Fletcher and Brock, who had accompanied the party to the house (they both boarded there) entered from a rear room, Tom having two pistols in his hands. The officers turned their fire upon Tom Fletcher and Brock, killing Tom and wounding Brock. The contention of the officers is that David Fletcher, Tom Fletcher, and Brock had entered into a conspiracy to kill the officers in the resisting of the arrest, and that they had to shoot to save themselves; while the prosecution claims that the officers acted unnecessarily in shooting David Fletcher, using more force than was necessary, even if it appeared to them and was a fact that David was attempting to get a pistol from the trunk. All these issues of fact were submitted to the jury by irreproachable instructions.

The only errors complained of that this court is authorized to notice were in the admission of evidence against the accused. Of these rulings only three are assailed. The first is, the court permitted the prosecution to prove that appellant, some weeks after the killing, returned to the house where it had occurred, but which had since been vacated by the family of Fletcher, and indulged in uncertain conduct, but which was thought to indicate mental perturbation by the accused --possibly that he was brooding over the act, indicating that he was being lashed by a guilty conscience; that he then said he wanted to pray for those boys; that he had been compelled to kill them in self-defense. The prosecution also proved that appellant was drunk on that occasion, and was armed with a pistol. After admitting the evidence, the court excluded it by an admonition to the jury, except they were allowed to consider the fact that the accused did visit the premises again, and that he was more or less intoxicated. We are of opinion that the whole circumstance was immaterial, and should not, on that account, have been admitted. Yet we are unable to perceive how it was prejudicial. Appellant was permitted to prove why he went there; that he went at the suggestion of his counsel to examine the situation of certain doors so as to be able to explain it to the attorney, appellant never having seen the place but once before. That he was a peace officer justified his carrying arms. That he was more or less intoxicated was not such a circumstance as would probably have prejudiced his case. If it be suggested that the court's admonition could not remove from the jury the hurtful effect of the matter excluded after it was once admitted, it seems enough to say in response that it is not at all certain that the matter was really prejudicial. To pray for one's enemies is not regarded as evidence that the one offering the prayer is doing it from a sense of his own personal guilt. The taking of human life, even when justifiable under the law, may affect one's peace of mind; but that fact does not militate against the legal innocence of the slayer. These are mental phenomena well known. The jury, in every probability, were fully aware of them, and were as apt, at least, to give them a proper application as not. It would be trivial to reverse a judgment for such slight irregularity in the trial.

Another matter complained of is that it was proven that appellant sold his pistol-- the one with which he did the shooting charged in the indictment--to Chas. Byrley some time after the killing. Byrley was permitted to prove that there were three notches cut on the pistol, which the commonwealth sought to show and argued to the jury were put there by appellant to indicate the number of men he had shot with it. Unless appellant admitted, or it was otherwise shown, that he so marked the pistol, and for the purpose of making a score of the result of his shots fired on the occasion for which he was being tried, the matter is wholly immaterial and irrelevant. If there was doubt as to the identity of the pistol, and the distinguishing marks were used by the witness for the purpose of identification, the evidence would have been admissible; for it was a material fact to be shown that appellant fired a pistol of large caliber, of the size of the one offered in evidence *576 inasmuch as two of the mortal wounds entering from the back were fired from such a pistol. There was no evidence that appellant ever fired his pistol at any other person or on any other occasion. The admission of the evidence does not seem to us to have been prejudicial.

The remaining objection is that the court allowed evidence to go to the jury of the killing of Tom Fletcher and of the shooting of Brock. It would have been difficult, if not impossible, to have prevented it, even if it were not proper, for it was all one transaction, so interwoven and done so quickly that, according to appellant's own version, "it was over before you could open your mouth." To tell of it without telling all of it would be hard to control. Everything done at the time, and every part of the affair, was receivable in evidence as explaining the nature and motive of the act for which appellant was being tried. But, were it otherwise, the court, whenever objection was made, rejected all evidence of the shooting of Tom Fletcher and of Brock. The most of the evidence admitted on that point came from the appellant himself and his witnesses.

There does not appear to be a reversible error in the record.

Judgment affirmed.

Ky.App. 1905.
84 S.W. 574, 27 Ky.L.Rptr. 137


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