Owens v. Commonwealth

18 S.W.2d 976, 230 Ky. 212, 1929 Ky. LEXIS 46

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: June 21, 1929
• Status: Published

Opinion

Opinion of the Court by

Drury, Commissioner—

Affirming.

Adam Owens seeks to reverse a judgment imposing upon him a penitentiary sentence of sixteen years for manslaughter. This is his second conviction, and reference is made to Owens v. Com., 223 Ky. 224, 3 S. W. (2d) 618, for a statement of the facts.

His first complaint is of the instructions, but they are the same as those given on the former trial, except one minor change made in instruction No. 5, which change was beneficial to the defendant, and of them we said on the former appeal: “The instructions given by the trial court were as favorable to the appellant as he could have asked. ’ ’

He says the verdict is excessive, was rendered through passion and prejudice, is against the law and the evidence, is not supported by either the law or the evidence, etc. In addition to calling the same witnesses, it called on the former trial, who testified practically as they did before, the commonwealth called two others and materially strengthened its case. In the former opinion we said: “The evidence . . . was sufficient to sustain the verdict. ’ ’

This time the defendant called four witnesses whom he had called before, and whose testimony is not substantially different from their former testimony, and, in addition, called four others, and materially strengthened his defense, but, unfortunately for him, the jury believed the witnesses for the commonwealth. We cannot reverse a judgment because the jury believed one set of witnesses rather than another. See Gilbert v. Com., 228 Ky. 19, 14 S. W. (2d) 194.

He complained of alleged errors in admission and rejection of evidence, 'but we are unable to find such in the record, and evidently he did not either, for he mentions none in his brief, so that disposes of this question.

The judgment is affirmed.