McIntosh v. Commonwealth

272 S.W. 423, 209 Ky. 203, 1925 Ky. LEXIS 463

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: May 22, 1925
• Status: Published

Opinion

Opinion ok the Court by

Judge Clarke

Affirming.

Upon Ms trial for the murder'of George Warner, appellant was convicted of voluntary manslaughter, and his punishment fixed at confinement in the penitentiary for sixteen years. For reversal he insists that the court erred in admitting incompetent evidence, and in refusing a new trial upon the ground of' newly discovered evidence.

The killing occurred on the night of August 16, 1924, and there is no complaint of any of the evidence with reference to what happened at that time, or that same is insufficient to sustain the verdict. The complaint is of proof by four Commonwealth witnesses, Mrs. Lucy Newton, Bud McIntosh, James Ashcraft, and Lawrence Tip-ton, with reference to a previous difficulty between the decedent on the one side and' the defendant and his brother upon the other. This difficulty occurred some six or eight months previous to the homicide, and the court erred in permitting these witnesses to describe in detail that difficulty, since only the fact itself was competent upon the question of the state of feeling between the parties at the time of the homicide.

But a new trial cannot be granted for this reason, since, after all the evidence was in, the court, of its own motion, admonished the jury as follows:

“Gentlemen of the jury, you will not consider the testimony of Mrs. Lucy Newton concerning the difficulty between George Warner and Bud McIntosh. The ojeotion is sustained to it and to all other testimony relating to that occurrence. You will not consider it at all. ’ ’

Even without this admonition, it would be difficult to see how this evidence, though incompetent, could have been prejudicial to the appellant, since it does not appear who was the aggressor or at fault in that difficulty, and after having been admonished by the court that it was incompetent and should not be considered at all, we are sure appellant’s substantial rights were not prejudiced in the least thereby.

Appellant’s contention that the court erred in refusing'to grant a new trial upon the ground of newly discovered evidence is wholly without merit. In support of his motion appellant filed only his own affidavit as to what Harrison Jones and Charley Estes would state upon a new trial. The record discloses that defendant knew of the presence of both of those parties at the time of the difficulty, and that Estes was jointly indicted with him. There is no showing of diligence, or why defendant did not ascertain before his trial what these witnesses knew about the difficulty.

Besides, defendant did not support his own affidavit by affidavits of either of the alleged newly discovered witnesses, without which, under the well established rule in this state, he was not entitled to a new trial. Bowling v. Commonwealth, 148 Ky. 9, 145 S. W. 1126; Woodford v. Commonwealth, 154 Ky. 818, 159 S. W. 567; Brennon v. Commonwealth, 169 Ky. 815, 185 S. W. 489; Fleming v. Commonwealth, 175 Ky. 655, 194 S. W. 788; Johnson v. Commonwealth, 188 Ky. 391, 222 S. W. 106.

Failing to discover in the record any error prejudicial to the appellant’s substantial rights, the judgment must be and is affirmed.