Case One of Two
240 Ky. 450
Court of Appeals of Kentucky.
TAYLOR v. COMMONWEALTH.
Oct. 13, 1931.
ACTION: Reversed.


Appeal from Circuit Court, Knox County.
William Taylor was convicted of voluntary manslaughter, and he appeals.

RICHARDSON, J.
William Taylor was indicted, tried, and convicted in the Knox circuit court on the charge of murder; the jury found him guilty of voluntary manslaughter and fixed his punishment at twenty-one years in the penitentiary. He appeals.

The appellant and Gilbert Broughton were related; the wife of deceased was a niece of appellant. Broughton was a merchant. Appellant was a farmer, occasionally working in timber when not engaged in farming. He was receiving from the federal government a pension of $19 a month. He became indebted to Broughton in a sum of about $200 for merchandise, purchased by him and his family at Broughton's store. Broughton desired to collect his account and, on different occasions, had demanded of him its payment. They lived within about three hundred yards of each other.

On the day Broughton was killed, he left his home, riding a mule, to go to his mother's. Shortly after leaving his home he returned, and when within about seventy-five yards of it, he was shot with a shotgun by appellant; the shot entering his left side, ranging up, and lodging in his shoulder. At that time he was on his mule with saddle pockets tied to his saddle. There is an irreconcilable conflict in the testimony as to whether the appellant was in or out of the road at the time he fired the shot, and as to whether deceased had a pistol in his hand at that time.

The wife of deceased claims she witnessed the killing. She states that at the time he fired the gun, appellant was standing with it in his arms in the edge of the weeds near the side of the road; that deceased was riding his mule when appellant stopped him and engaged him in conversation; that her husband had his hands crossed in front of him, resting them on his saddle, at the moment appellant threw his gun on him and shot; and that deceased fell off the mule and exclaimed, "Lord have mercy." She claims that at the time of the shooting she was on the front porch of her home, and that as soon as appellant shot the deceased, he immediately shot at her, one shot striking her in the arm, two in the shoulder, and one in the leg; that she obtained as quickly as she could a 25-22 Winchester rifle and fired three shots at appellant; when he again fired at her. He then ran through the weeds, and she ran to the rear of her home to an old house and again shot at him. She shot at him three times from the porch and three times from the back of her home. After the shooting appellant went away. At the time appellant shot deceased, she claimed deceased was not making any demonstration toward, nor attempting to do anything to, appellant. She at once went to deceased, laid the gun she was carrying on the ground, and turned him over. The deceased was in the road, and as soon as she turned him over she felt of his pulse and discovered he was dead. His saddle pockets were tied to his saddle, laying across his legs. A fruit jar containing a white liquid was in the saddle pockets, but there was no weapon in them. The deceased at the time had no weapon of any description on or about his person. The weeds where she claimed appellant was standing were estimated by her to be several feet in height. Other witnesses stated they were five or six feet in height.

Tom Gambrell and his wife, Bessie Gambrell, at the time of the killing resided about three hundred yards from the home of deceased. They were at their home on the day of the killing. There was timber between Gambrells' home and the deceased's home. The place at which deceased was killed could not be seen by them from their home. They did not see the killing, but heard the shots which, as they described them, were two shots of a shotgun, two or three shots of a smaller gun, then a third shot of the shotgun, and two or three more shots of the smaller gun. They saw appellant running past their home with a shotgun in his arms, within two or three minutes after the shooting. Immediately, Tom Gambrell ran to where deceased was shot. He was lying across the road on his back; the saddle pockets were tied on the saddle. The deceased's hands were under his body. Gambrell examined the saddle pockets and found in them a quart jar filled with a liquid which he did not examine. He got to deceased's body about the time the deceased's wife arrived. He was shot in the left side and his shirt was covered with blood. The load of shot ranged up toward the shoulder. He claims that the tops of the weeds near the edge of the road were broken off close to where deceased was lying. A few poles were in the weeds and a man's tracks were in the weeds, three or four steps from the road, "right around where the weeds were broken off." A man's tracks came from out of the weeds toward the road. Other witnesses residing near where the killing occurred described the shots as they heard them. Others described the condition of the weeds and the presence of the tracks therein near where the shooting occurred. As would be expected, there is a difference in the statement of the several witnesses in respect to their observations.

The appellant in his own behalf testified that he had traded at the store of deceased for one or two years, and that a dispute arose, and existed, between him and deceased about his store account. He stated that on the day of the killing he came from Middle Creek to his home; that shortly thereafter he left home to go to the August primary election. On leaving his home he carried his shotgun under his arm, or on his shoulder; walking; that he did not know Broughton had gone away from his home on that road, or that he was returning on it. He passed deceased's home, and while walking on the right side of the road, he heard the sound of horse's feet on the "creek road." On hearing it, he looked and saw Broughton coming up the creek on his right side of the road; they met each other; deceased was in plain view of him, forty yards away before they met; and on meeting each other the deceased stopped and asked where he was going. He responded he was going to the election. The deceased was "pretty drunk" and inquired of him if he wanted a drink of liquor. He stated to him that he did not. Thereupon, deceased threw his saddle pockets up on his leg, or his leg behind the saddle pockets and in front of his leg, pulled his leg around a little, and said: "Come on and go into the house with me, I have got plenty at the house and will give you all you can drink." He again informed deceased that he was going to the election and to hire some hands to work for him the next week. The deceased repeated his request to go to the house with him and get some liquor. He followed this up by saying, "When are you going to pay me?" Appellant informed him that he would pay him out of next check. The deceased then demanded that he give him his government check. Appellant informed him that he did not have it. The deceased thereupon said to him, "God damn you, don't you move hand or foot, I am going to kill you," and immediately reached his hands into the saddle pockets and brought out a pistol, and as his hand came out with the pistol, he raised his gun and fired it, shooting one time at deceased. It was a large pistol and looked like a .45. At the time he raised his gun and fired at deceased, deceased's pistol was in his hand. Immediately thereafter three shots were fired at him from the home of deceased, by some one not seen by him. He turned around without seeing any one at the house, shot toward it, and then ran. He saw deceased's wife back of her home, going toward another house, when she shot at him again. He did not shoot at her but once. He then went to his home and remained in the cornfield until the officers came and arrested him.

Certain alleged threats made by the appellant against deceased were testified to by Clayborn Taylor. Osco Warren testified that he and appellant, in June or July, borrowed a gun from Frank Patterson, the appellant stating at the time that he was going to kill deceased with it; that witness and appellant borrowed the gun for the purpose of appellant killing deceased, and the witness to use it to kill Clayborn Taylor. The testimony of these witnesses, as well as the testimony of other witnesses who testified as to conversations with appellant relative to his indebtedness to Broughton, was competent. The weight to be given same was for the jury to determine. Without further particularizing the evidence or attempting to set it out in this opinion, it cannot be doubted that the evidence was sufficient to authorize the submission of the case to the jury.

The appellant urges as ground for reversal: Alleged improper conduct of the trial court; improper conduct of the commonwealth's attorney; error of the court in refusing to grant a change of venue; error of the court in refusing to continue the prosecution; error of the court in admitting incompetent evidence in behalf of the commonwealth, and the rejection of competent evidence offered by him.

The conduct of the court complained of is his alleged improper statements during the impaneling of the jury. After seven jurors had been examined and qualified, the judge in the presence of these jurors, and in the presence of those whose names had been drawn from the wheel, summoned, and were present to be examined as jurors, made statements substantially as follows: "The jury box is the very best place to play the game of 'snipe hunting,' 90 or 95% of the witnesses in every case in court show their partiality to the side calling them, and will color their testimony. You do not have to take any witness at 100%, some of them are not worth a cent, others of great value. I am ashamed of some of the verdicts I have to receive; some jurors are lopsided and cannot see but what the defendant ought to be acquitted or convicted. You have to have a backbone to get the sort of verdicts you may expect. The court had a good jury last term, and it is wanted by the court that the jury write the same sort of verdicts. Those who disqualify themselves because they are remotely related are not big enough to be the right sort of jurymen. Let the jury walk out and write the sort of verdicts you are not ashamed of. Let us work along together and write verdicts hand in hand, hip to hip and shoulder to shoulder, with heart to heart and head to head. I want us to try the very first case we try right--and take each other into our confidence, and if you need help, call on me."

The appellant moved to discharge the jury; his motion was overruled.

In the discharge of his duties it is presumed that a judge of a court is actuated by the highest motives of patriotism and the most laudable zeal for law enforcement and observance, and that he will not intentionally suffer himself to make any statement in the presence of the jury unduly to influence it in its verdict; nor by inadvertent or unguarded statements do so. The essential, the primary, and ultimate purpose of a trial by jury of the vicinage is to make it absolutely assured that accused will be afforded a fair and impartial trial, according to the facts adduced and the instructions given by the court. In his jurisdiction, the trial judge is not a mere Robot, or only a living automaton; nor is he a mere silent arbiter or umpire of a game of sport with the right to expect the observance of prescribed rules, by himself and those engaged, without a right, either directly or indirectly, to advise or counsel with the players in the meaning of their game.

A trial judge may with propriety at the proper time admonish the jury of its duties and obligations in the performance of its work, and of the nature and importance thereof, and advise and counsel it of the purpose, and of the majesty, of the law, to the end that it may be by both the court and the jury fairly and justly administered to all alike. But in the exercise of such right and privilege he may not, by a disguised act or word or innuendo attempt to coerce, control, or influence a verdict in any case. Jurors diligently watch the actions and weigh the words of the presiding judge to divine his leanings in, and his views of, the case. Therefore, he should cautiously guard against, and refrain from, doing or saying anything in their presence or hearing which may be calculated to indicate to them his mind on any issue or question appertaining to the case.

Not every act or statement of his in the presence or hearing of the jury is accepted by this court as prima facie prejudicial to the rights of an accused. It is only such as may really be prejudicial to his rights or may have interfered with, or prevented, a square deal, or interrupted substantial justice, or affected prejudicially the ultimate result. The interruption of a verdict of the jury by this court, on account of his actions or statement, during the progress of the trial, depends upon and is controlled by those complained of, and which affirmatively appear of record in each particular case. This case must be reversed on another ground, and since it is hoped and expected that the address of the trial judge will not again be delivered, we deem it unnecessary to devote further time or space to its consideration or to the appellant's objection to it.

For like reasons the objection to the arguments of the commonwealth's attorney will not be considered.

It is insisted that the court erred in refusing to grant a change of venue. An application for change of venue in a criminal prosecution must be made by the defendant by a petition in writing, verified by him, and supported by the affidavits of at least two other credible persons not related to nor of counsel of the defendant, stating that they are acquainted with the public mind in the county in which the prosecution is pending and that they verily believe the statements of the petition for such change of venue are true. Without the presentation and the filing of such petition and the supporting affidavits indicated, the court is without authority to grant a change of venue. The appellant filed a written motion for a change of venue, which was merely signed by his attorneys, and in support thereof filed his own affidavits and the affidavits of three others. No petition was filed as required by the statute supra. The supporting affidavits do not undertake to comply with its requirements. Therein the affiants undertake to give the state of public sentiment and state "they do not believe that defendant can at the present term of court obtain a fair and impartial trial from a jury selected in Knox County." The appellant's motion and supporting affidavits cannot be considered to be more than a supported motion for the selection of a jury from a county other than that in which the prosecution was pending. When so considered, it cannot be said that the court abused its discretion conferred upon him by section 194 of the Criminal Code of Practice. The right of the accused to have a jury summoned from another county rests largely in the discretion of the court. And unless it affirmatively appears that the court has abused his discretion, his ruling thereon will not afford grounds of reversal. The court cannot be controlled by affidavits of a defendant when satisfying himself that a jury cannot be obtained from the county where the prosecution is pending. The appellant filed his affidavit and a supplemental affidavit in support of his motion to continue the case. It is unnecessary to consider the rulings of the court thereon for the reasons that upon another trial, if one should be had, the same grounds of continuance may not exist.

The appellant insists that a grave, and highly prejudicial, error was committed by the court in the admission of certain evidence. In our judgment this presents an inescapable ground of reversal. The vital issue--the gist of appellant's defense--was the possession of a pistol by deceased at the time and place of the killing. His widow and a Mr. Gambrell, both witnesses for the commonwealth, testified that no pistol was found on or about the deceased immediately following the killing. The defendant testified to the contrary. The commonwealth was permitted to ask the witness Floyd Mills, and he was permitted to answer, as follows:

"Q. Did you have any talk with him (Gilbert Broughton)?
A. Yes, sir.

Q. Tell the jury what was said between you.
A. Well, I asked him, do you want to buy a pistol, and he said, 'I just sold mine a few days ago, and decided to quit carrying one, don't have any use for one.'

Q. How long was that before he was killed?
A. Well, that was something like a week before that, I will say possible."

Kittie Broughton, witness for the commonwealth, was asked and answered as follows:

"Q. Did he (Gilbert Broughton) own any pistol?
A. No, Sir.

Q. Do you know how long before that he owned a pistol?
A. Yes, sir about a month, or longer.

Q. Do you know what he done with the pistol?
A. He told me that he had sold it."

The statements of the deceased made to these witnesses, and about which they were permitted to testify, were clearly incompetent, coming within the rule forbidding hearsay evidence. Also it was improper to permit his widow to testify to any communication during marriage by her husband to her. The appellant's only defense was that he shot deceased at a time when deceased was in the act of shooting him with a pistol. The testimony of these witnesses corroborated the other evidence tending to show that the deceased, immediately following the shot which killed him, had no pistol and that none was on or about him or in the saddle pockets in his possession. It is sufficient to say that this testimony was incompetent and we are not permitted to speculate on its influence on the minds of the jurors when making its verdict. It may have influenced the jury and it may have prevented a fair trial. Its admission furnishes ample ground for a reversal.

The witness Millie Roark was permitted to narrate a conversation she had with the appellant. It was improper to permit this witness to detail her own statements to the appellant and to express an opinion which she had formed and expressed to him in the conversation. The statements only of the appellant relating to his account with Broughton were proper to be admitted as evidence against him.

Two witnesses were introduced by the defendant who testified concerning the general reputation for truth and veracity of certain witnesses introduced by the commonwealth. After they testified, on his own motion, the court refused to permit the appellant to introduce any further testimony on the subject. Thereupon appellant avowed that by nine other witnesses named at the time by him, he could prove by each of these witnesses that they were acquainted with the general reputation for truth and veracity of these witnesses and that it was bad. The court refused to permit any of them to be introduced or to testify.

It is a general and fixed rule of procedure that the court may exercise a reasonable discretion in the production of further evidence on a particular point and limit the number of witnesses thereon, if the evidence upon it is already so full as to preclude a reasonable doubt.

In applying the rule it is usual and proper, in fact the best practice, for the court to announce in advance of the hearing of the evidence that the number of witnesses will be limited on the particular point, such as the general reputation of the witnesses for truth and veracity, or after having heard testimony on a given point, to announce that it will thereafter permit only a limited number of additional witnesses upon that point. This practice gives the parties an opportunity of selecting their best witnesses and the presenting of their case in the strongest light. The applicable rule in a criminal prosecution may be found in section 593, Civil Code of Practice. This provision and its construction and application by this court should control on such questions. The reputation of witnesses in the present case was a collateral question, and not the gist of the issue. The appellant introduced two witnesses on the particular question of the character of certain witnesses for the commonwealth; the commonwealth did not offer rebuttal evidence on it. It cannot be said that the action of the court in so limiting the number of witnesses was prejudicial to the substantial rights of the defendant, sufficient within itself to authorize a reversal. Other objections were made and exceptions were saved to other acts and rulings of the court, but we do not deem it necessary to consider them, as they may not occur on another trial.

Wherefore the judgment is reversed for further proceedings consistent with this opinion.

Ky.App. 1931.

TAYLOR v. COMMONWEALTH.

42 S.W.2d 689, 240 Ky. 450



Case Two of Two
262 Ky. 126
Court of Appeals of Kentucky.
TAYLOR v. COMMONWEALTH.
Nov. 15, 1935.
Rehearing Denied Feb. 7, 1936.
ACTION: Affirmed.


Appeal from Circuit Court, Knox County.
William Taylor was convicted of voluntary manslaughter, and he appeals.

THOMAS, Justice.
At about 2 p. m. on Saturday, August 3, 1930, the appellant, William Taylor, killed Cecil Broughton. The weapon employed was a shotgun, and the scene of the homicide was in a public road about 150 yards from where it passed in front of the residence of deceased near which was a country store building in which he operated a merchandise business. Deceased on that morning had gone to his mother's home some few miles distant from his residence muleback, and was returning to his home riding his mule with saddle pockets across his saddle. Appellant's home was probably the same distance or a little farther from that of deceased in the opposite direction. He was indicted by the grand jury of Knox county charged with murder. At the trial thereof he was convicted and punished by confinement in the penitentiary for 21 years; but that judgment was reversed on appeal to this court for certain errors outlined in the opinion which is found in the case of Taylor v. Commonwealth, 240 Ky. 450, 42 S.W. (2d) 689, and in which a somewhat elaborate summary of the evidence for both the prosecution and the defense is set out, much of which need not be again repeated. A later trial resulted in the present conviction, followed by the same punishment, and from the verdict and judgment rendered thereon, this appeal is prosecuted.

A long list of alleged errors is set forth in the motion for a new trial, but some of which are not referred to in brief of counsel filed in this court, while some of those which are referred to therein received but a bare mention without serious pressing. In the entire body of the brief we fail to find a single case cited from this or any other court in support of any of the arguments made or the contentions urged. The arguments as thus presented may be classified as:
(1) Error of the court in refusing defendant's motion for a continuance;
(2) error in the admission of evidence;
(3) error in the rejection of evidence offered by defendant;
(4) error in not postponing the trial until the presence of absent witnesses could be obtained;
(5) error in the instructions; and
(6) error of the court in unreasonably limiting the time for argument of counsel; each of which will be later disposed of in the order named.

Appellant had grown a crop on a farm some three miles distant in the direction from whence the deceased was returning, and he testifies that he was on his way walking with his shotgun to the primary election held on that day to cast his vote, and was intending to go from thence to the farm he had cultivated that year where he expected to remain for some days before returning to his home, although he had been absent from home and at that farm for practically the entire preceding week and had only returned home about 12 o'clock that day. He stated in his testimony that during that week he had "laid by" his crop, and later testified that his return to the farm upon which it grew was to procure some hands to finish the cultivation. Some two or three eyewitnesses testified for the commonwealth who proiessed to have seen practically all that occurred at the time of the meeting; one of whom was the widow of deceased, who was on the porch of her residence and claims to have seen practically all that transpired. A neighbor residing about the same distance beyond the fatal scene corroborated her in the main as to how the deceased met his death. One or two others for the commonwealth saw parts of what occurred, and to the extent they testified their testimony also corroborated the other prosecuting eyewitnesses.

Appellant alone is the only eyewitness who appeared and gave testimony in his behalf. In stating what occurred on the fatal occasion, after telling of the meeting "Shorter announced 'not ready' and moved the court to continue his case because of the absence of his chief counsel, the Honorable J. M. Robsion, and on account of the absence of material witnesses, and filed his affidavit setting forth what the testimony of those witnesses would be if present. As to the absence of counsel, 'The counsel who was absent had some months before the trial been elected a representative in Congress, and at the time of trial was necessarily absent at the seat of government in his official capacity. Appellant had other counsel present at the trial, whose reputation and standing as an attorney at law is of the best, and whose conduct of the defense shows every evidence of painstaking and competent attention. If continuance as a matter of right could be had on such grounds, it might be impossible to bring one charged with crime to trial at all.' Shorter was represented in the trial court and in this one by a man of vast learning and experience gained from years of practice, as well as a long service as a circuit judge, as a member of this court, and as Governor of this commonwealth. The defendant's present plight is not the result of any lack of skillful representation, but has resulted from lack of favorable evidence." That statement effectually answers the same point raised on this appeal.

The affidavit stated the absence of nine alleged important witnesses, who it was also stated had been duly subpoenaed and some or all of whom had testified at one or the other of the two former trials, and whose testimony had been taken and transcribed by the court stenographer. However, it was not set out in the affidavit for a continuance what would be the testimony of any of those absent witnesses, except as to William Mills, and only a part of his testimony as contained in the affidavit was read to the jury. The affidavit did set out the testimony of some other supposed witnesses, but their names were not contained in the list of the absentees. However, what the affidavit stated would be their testimony was nevertheless read to the jury, either from the affidavit or from the testimony of such persons given on a former trial. It will thus be seen that defendant had the opportunity to get the benefit of the testimony of any or all of his alleged absent witnesses, either by incorporating their testimony in his affidavit for continuance, or by reading their former testimony given at previous trials, if transcribed and preserved, and that he availed himself of those sources to the extent he wished.

But it is stated in brief that the court refused to allow defendant to read some of the testimony set out in his affidavit and which statement appears for the first time in brief of counsel. No such refusal of the court is contained in any part of the record, and for which reason that contention cannot be considered. Upon each occasion when the testimony of an absent witness was read, the court properly stated to the jury what effect should be given to it and which conformed to the rule of practice in such cases. Moreover (as will be later referred to in discussing argument (4), it was not manifested by the record that any of the alleged absent witnesses had ever been subpoenaed, or that subpoenas had ever been procured for them. In the circumstances it clearly appears that this argument is without merit.

2. Referring to this ground in brief, counsel are satisfied with making only this statement: "Commonwealth was allowed to introduce certain incompetent evidence against the appellant which defendant moved to exclude, and which motion was overruled by the court and the appellant saved exceptions." It is needless for us to collate the cases in which it was held by us that such meager references to alleged errors will not be considered on appeal, upon the ground that one which deserves no more discussion or consideration by counsel relying on it will be considered as abandoned. However, we have closely searched the record and we have failed to find wherein the court admitted improper testimony to the prejudice of defendant. In, perhaps, one or two instances some answers of the witnesses were allowed to remain in the record that were of no materiality either way, and which would not have even a remote bearing upon the issue involved or could in the least prejudice the rights of either side. For the reasons stated, this argument must also be overruled.

3. The only testimony referred to in briefs that the court rejected, and which is complained of under this ground, was an effort on the part of defendant to prove the general reputation of the deceased as a bootlegger. His reputation for peace and quietude (especially when drinking) was permitted to be proven by all of the witnesses that defendant introduced or offered on the subject; but when some of them were asked as to his reputation as a bootlegger of liquor the court sustained the objection of the commonwealth. Not a case is cited in support of this argument, and we presume it was for the reason that none could be found to support it. On the contrary, we have held in a number of cases that such reputation was not admissible in any kind of trial, except where a defendant was being tried on a charge of violating the former liquor statute of this commonwealth, known as the "Rash Gullion Act", and such testimony was admissible in that character of case only because that statute expressly so prescribed. It, therefore, follows that this argument should also be disallowed.

4. The case was set for trial on June 19, 1934. Immediately upon the filing of the motion for a continuance the court issued attachments for the absent witnesses and appointed a special bailiff to immediately go after and arrest and bring them in court. He departed on that day upon that mission armed with the necessary legal processes and the entering into the trial was postponed until the next day, the 20th. It was commenced on that morning and the testimony was finished by 5 o'clock that afternoon when a recess of the court was taken until 7 o'clock p. m. When that hour arrived the special bailiff had not returned with any of the witnesses, and had made no official report to the court. None of the testimony of any of the witnesses whom he had been ordered to arrest and produce in court and who had not testified at former trials was set out in the affidavit for a continuance, further than to say their testimony was "material to the defense,"and the court upon the convening of the night session ordered the trial to proceed; the remaining portion of which was largely for the arguments of counsel.

In the circumstances, we fail to comprehend wherein the court erred in pursuing the course it did. Before doing so he inquired if the witnesses had been subpoenaed, having theretofore accepted the statements of counsel as contained in the affidavit for a continuance that they had been. But upon investigation then made it was developed that none of such witnesses had ever been subpoenaed. If such subpoena, if issued, had become lost no effort was made to show that fact and none such was found in the record. Neither the clerk who should have issued them, nor the officer who should have executed them, was offered to be introduced, and in the circumstances, considering the fact that defendant could get the benefit of the testimony of the witnesses in either of the two methods hereinbefore referred to, and the further fact that this case had been pending for four years, we are disinclined to hold that the court erred to the prejudice of the defendant. Certainly no valid claim could be made that defendant was entitled to the testimony of an absent witness without manifesting to the court in some way what that testimony would be; but which, as we have seen, was not done as to a number of the witnesses whom the special bailiff was directed to arrest and produce, nor does counsel, even in his brief, enlighten us as to what that testimony would be.

5. The only two points pressed in support of argument (5) are: That the court erred in the voluntary manslaughter instruction in saying to the jury that if it believed beyond a reasonable doubt that the killing was done "upon provocation reasonably calculated to excite the passions of the defendant beyond the power of his control," etc., then he should be convicted of the lesser degree of the offense charged in the indictment. The criticism is that the quoted language of the instruction improperly defined one of the elements of voluntary manslaughter. No case is cited in support of that argument, and we have compared the criticised instruction with a number of others appearing and approved in prior opinions of this court, and the quotation complained of is literally copied from a great number of those instructions. We are, therefore, convinced that this criticism of counsel is without merit.

The further contention is made in support of this argument that it was the duty of the court to define to the jury the phrase "imminent danger" creating the condition under which defendant might exercise his right of self- defense, as contained in the instruction submitting that defense. We are likewise cited to no case supporting that contention, and counsel's insistence upon it, as contained in his brief, is limited and confined to this statement only: "The self defense instruction is also erroneous in more than one particular, and especially in the employment of the word 'imminent' in connection with the word 'danger,' without defining the word 'imminent' and 'danger' and without informing the jury just what is meant by such an expression."

The words "imminent," and "danger," are both of universal and common use, and their definitions are about as familiar to the masses of the people as is that of most any other word in the language. To require a judicial definition of them to be submitted to the jury would also require the court to define most of the ordinary common words employed in the framing of an instruction, and which, in many instances, would be impossible for the court to make plainer or the meaning more easily comprehended than what is contained in the words themselves. Without further comment, we unhesitatingly say that the law exacts no such duty on the part of the court relating to such familiar terms as the ones referred to.

6. Lastly, it is contended in support of argument (6) that the court allowed only forty minutes to the side to argue the case to the jury, which it is insisted was unreasonably short, and for the error so committed the judgment should be reversed. To begin with, the testimony in the case consisted of only 199 pages of the record, written double-spaced. It was heard and completed by 5 o'clock p. m. on the one day consumed in its introduction. The testimony on the crucial point in the case (i. e., what happened at the immediate time of the meeting of the deceased and appellant at the place of the homicide) was comparatively brief and confined to the testimony of but few witnesses. Forty minutes, it occurs to us, was reasonably sufficient for a thorough presentation and discussion of all of the testimony adduced at the trial.

But an examination of the record expressly shows that the court allowed to defendant's counsel one hour in which to argue the case to the jury. That ruling of the court was made in disposing of a motion by defendant's counsel "to give each of the parties a reasonable time in which to argue the case and the defendant thinks he should have at least one hour and a half on a side." The commonwealth objected to the giving of that much time, and the court then stated that he would allow "the defendant an hour." It does not appear anywhere in the record that the time so fixed was violated by the court, and for which reason also we are unable to sustain this contention.

The trial under consideration was presided over by Special Judge J. D. Tuggle, an eminent attorney of Barbourville, Ky. The record shows that he conducted it with skill and ability, and with complete freedom from partiality towards either side. It was for the jury to say which theory of the case, as presented by the testimony, it would accept. It chose to accept the most merciful one available to the defendant, if he was guilty at all.

We fail to find in the record any ground for disturbing the verdict, and for which reason the judgment is affirmed.

Ky.App. 1935.

TAYLOR v. COMMONWEALTH.

89 S.W.2d 630, 262 Ky. 126



     

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