Opinion
Decided May 17, 1929.
Appeal from Bell Circuit Court.
J. HENRY TAYLOR and ARTHUR RHORER for appellant.
J.W. CAMMACK, Attorney General, JAMES M. GILBERT, Assistant Attorney General, J.S. GOLDEN, D.M. BINGHAM and W.A. BROCK for appellee.
Affirming.
On Sunday, July 22, 1928, Leo Partin was slain. Millard Gibson was charged by indictment with his murder. On his trial he was found guilty of manslaughter, and his punishment fixed at 15 years' confinement in the penitentiary. Gibson admits this homicide, but seeks to excuse his act on the ground of self-defense. There was evidence pro and con, and unfortunately for him the jury believed the witnesses for the commonwealth.
His first ground, for reversal is that the court deprived him of the benefit of the evidence of Mattie Daniels and Wheeler Ferguson. He sought a continuance on account of their absence, but this was the fifth time this case had been set for trial, the attendance of these witnesses had never been procured, and from the very first Gibson had been seeking continuances on account of their absence. The court apparently became suspicious that they were mythical, and the commonwealth offered three witnesses, who were examined by the court, and whose evidence tended to strengthen that suspicion. Then the defendant and three witnesses on his behalf were heard. The effect of their evidence was to take these witnesses out of the realms of mythology; but none of his witnesses was able to say where these two wanted witnesses lived, or that they were in the state, so the court declined to continue the case, sustained a demurrer to the affidavit for continuance, and the defendant alleges that he was thus deprived of the benefit of their evidence. However, he did not show they were within the jurisdiction of the court, he had made no effort to take their depositions, and he failed to state these witnesses were not absent by his procurement or consent; hence the action of the court was correct. See Arnett v. Com., 114 Ky. 593, 71 S.W. 635, 24 Ky. Law Rep. 1440; 16 C. J. 500, sec. 920.
His next ground for reversal is that the court erred in rejecting competent evidence offered by him. The defendant was conducting for Ball Bros. a soft drink establishment on Log Mountain, which was known as the Silver Moon. He testified that, about ten days before the killing, Leo Partin and William Nicholson came to the Silver Moon, and ran him off, and took charge of the place, and it was necessary for him to get officers to dislodge them, and he testified that he regarded Partin as being unfriendly to him. He sought to prove the details of that previous difficulty, but the court declined to permit him to do so, and said to the jury: "The testimony about this previous difficulty is admitted only for the purpose of showing the relationship between the deceased and the defendant, and whether it was friendly or unfriendly, for no other purpose." He claims the court erred in making this statement to the jury, that he was not on friendly terms with the deceased, but that was the very thing he had been trying to prove and the very thing to which he had testified, so there is no merit in that contention.
His next ground is this: Defendant had introduced Emmett Monday and J.S. Claiborne and those two witnesses had testified in his behalf and their testimony supported his claim that he acted in his necessary self-defense. The commonwealth then called in rebuttal William Nicholson, William Miller, and James Lewis, and these three witnesses testified that Claiborne and Monday were not present when the difficulty occurred, and he now says the court erred in refusing to admonish the jury that they could only receive the evidence of these three witnesses as impeaching or contradicting the testimony of Monday and Claiborne. One answer to this contention is he did not ask for such an admonition, and did not object to the evidence of these witnesses when it was offered; but, if he had asked it, he was not entitled to such an admonition anyway. This question is thoroughly discussed and disposed of adversely to the defendant's contention in a controversy between one who was perhaps a kinsman of his and the commonwealth; at least he had the same name. We refer to the case of Gibson v. Com., 226 Ky. 186, 10 S.W.2d 646.
His final contention is that the court erred in refusing to instruct the jury on the defendant's right to defend the premises of which he was in charge. The failure to give such an instruction was not error. There was no evidence to support it. It is true the deceased and those with him came into the Silver Moon, of which defendant was in charge, but the Silver Moon was maintained as a place of public entertainment and refreshment. It was a place to which the public was invited. There was kept there for sale food and drink, and the deceased and his companions came in for the purpose of buying such, and had bought such when this difficulty arose. They had made no attack on defendant's place of business. He makes no claim that he was defending his place of business. His claim is that he was defending his life and in such state of facts the court did not err in failing to give the instruction for which he is now contending. See Banks v. Com., 227 Ky. 500, 13 S.W.2d 511; White v. Com., 225 Ky. 596, 9 S.W.2d 720.
The judgment is affirmed.