Court of Appeals of Kentucky.

HUFF

v.

COMMONWEALTH.

Nov. 25, 1938.

Appeal from Circuit Court, Knox County.

John D. Huff was convicted of manslaughter, and he appeals.

Affirmed.

MORRIS, Commissioner.

This appeal is from a judgment following a verdict declaring appellant guilty of manslaughter, and imposing a penalty of imprisonment of twenty-one years. He was charged with having murdered Elisha Owens on July 25, 1936.

This is a second appeal. The court reversed the judgment of the first trial because certain testimony relating to statements made by deceased, under alleged belief of impending death, was erroneously admitted.

Appellant and deceased worked in the coal mines at Wayland. Appellant had worked on the day of the homicide (Saturday and pay day) until about noon, and started home. When he got to a point in the road near Gibson's store, leaving the main highway to go to his home, he saw some one covered with debris lying in a garage. He learned upon inquiry that it was Owens, and that he was drunk. Passing on he went to his home, and later was eating his evening meal when Owens came up the road to his home and called for him. A member of the family answered and invited Owens to come in and have supper, but he declined, saying he wished to see appellant, who then walked through the house to a back door around to the front, whereupon he and Owens went down the road a short distance and sat down. Owens told appellant that he had come for some money which appellant owed him. Appellant replied that he intended to pay him as soon as he could, but that he, Owens, owed him $20 which he wanted credited.

The discussion brought on sharp words, the feeling becoming intense, and both men started to get up. Owens took hold of appellant's shoulder with his left hand, pulled him down, put his right hand in the bosom of his shirt and insisted on payment or he would kill him. At this point appellant jerked out his pistol and fired three shots, and when Owens failed to loosen hold, fired twice into the air, whereupon Owens released his hold, and fell mortally wounded. Appellant then went back to the house, and had some one call for an ambulance. Owens was taken to a hospital where he died about midnight.

The details thus far given are taken mainly from appellant's testimony, wholly so as to what occurred after Huff was called out of the house, and up to the time of the shooting. There was no other eyewitness to the homicide.

The commonwealth relied upon circumstances from which the jury concluded that the taking of Owens' life by Huff was not in defense of his life. These circumstances consisted of proof which evidenced previous ill feeling on the part of appellant, due to a long continued effort on the part of deceased to collect his debt; at times garnisheeing, or attempting to garnishee, appellant's wages. Also by proof of threats made at various times by appellant toward deceased, all growing out of the money differences, and other circumstances developing, as we take up the grounds urged for reversal.

The commonwealth introduced a witness who had seen Owens lying in the garage. Later in the afternoon, the witness says, Owens came up the branch and offered witness some liquor. Owens had two pints, one open and one unsealed, as was later developed. He did not see Owens with a weapon. After Owens passed, and in about thirty minutes, witness heard five or six pistol shots; went up the road and found Owens lying in the road, a short distance from appellant's home. This witness saw no pistol around the body, nor is there any evidence introduced showing that Owens was armed. His body was examined, and there was no weapon of any kind on or about his person.

Another witness says that appellant came to his home, near the scene of the homicide, and told witness' wife to call the hospital, which she did. Appellant said that he had shot deceased five times, but he hoped he would get well, and told witness to "go up and do all you can for him". This witness also said that appellant remarked that deceased was "making for his gun, but I beat him to it." Accused also said that Elisha had threatened his life and he had tried "to break in on him", and that he could prove that.

Mrs. Owens testified that her husband, who had been a merchant, had difficulty in collecting an account due from appellant. That at one time he attached some corn belonging to him. The account was $196.32, and appellant denied $20 of it, and this was not included in a later judgment against appellant for $176.32. After judgment some time in 1934, deceased had a garnishment served on appellant's employer. On July 24, 1936, the day before the homicide, deceased went to a magistrate and obtained another attachment, but this was not served on appellant. The papers were returned to Mrs. Owens two days after the homicide. The unserved attachment was introduced in evidence over objection of appellant, and this is one of the grounds urged for reversal.

It is shown that after the first and second garnishments were issued appellant became much incensed, and on several occasions was heard to say that if Elisha Owens ever got out another attachment, "it wouldn't end as it did before". Also that he would kill any man who undertook to attach his property. One such statement appears to have been made after the last attachment was gotten out.

The objection made with relation to the above testimony is two-fold. It is complained that the introduction of the paper was incompetent and prejudicial, as was testimony relating to the several attachments. We do not think so, since it is competent to show feelings, passion and propensities under which parties meet and act; experience and observation have shown that a conclusion may be drawn from acts, performed in a certain manner tending to show that accused acted from a particular motive. "Any motive rendering the killing probable, or explaining it against inherent improbabilities, or otherwise helpful to the jury as a circumstance, may be proved against accused, as his conduct before committing the offense may be important even though it is not indispensible to a conviction, that a motive should appear."

Counsel for Commonwealth asked the witness: "Do you recognize the shirt as being the one he wore off from home? A. That is the shirt he wore off from home." Witness said that the shirt was the same, and in the same condition as it was when introduced on the former trial, and that the garments were the same, and in the same condition as they were when her husband's body was brought home, "except when I received the body they were wet with blood; today they are dry in blood". We think the clothing was properly introduced. Counsel objected to a school teacher's testimony describing the bullet wounds, the number thereof in the body of deceased, and points of entrance and exit. It is argued that such testimony is incompetent unless given by an expert, assuming that by "expert" he means a physician.

On the former appeal witness Ramey testified that he go to the place of homicide, where deceased was lying in the road, about five minutes after he heard five or six shots. Owens said to him, "Get me to the hospital as quick as you can, I am killed". Asked if Owens said how the trouble occurred, witness said, "Not exactly", but Owens said: "Why did this man want to shoot me up and me only begging to him?" On the first trial the first part of the statement was admitted, but the latter part rejected.

A reference to the former opinion will show that deceased made later statements upon being importuned by Ramey, and another witness. These were made after Owens had been given ardent spirits which seemed to revive him, and he expressed the belief that he would "pull through". After he was carried to the hospital, and after the administration of a narcotic, Owens, upon being asked if he desired to make a statement, said, "I don't care". He then made a statement which was written down, the substance of which was that appellant shot him and he was begging him not to shoot; that he had attached Huff's time, and "he just walked up and shot me". This paper, unsigned, and not read or approved by Owens, was allowed to be introduced. We held that this was error for two reasons, first, because the purported statement was not made in extremis, as we have construed that term; secondly, because the paper was unsigned and unapproved.

On the whole case we have reached the conclusion that appellant was accorded a fair and impartial trial.

The judgment is therefore affirmed.

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