Colvin v. Commonwealth
Colvin v. Commonwealth
Opinion of the Court
delivered the opinion of the court.
The accused was convicted of malicious wounding and sentenced to the penitentiary for three years. The person wounded was Lamar Colvin, his cousin, with whom he was on very friendly terms. The theory of the prosecution was that he intended to shoot his brother-in-law, Cal Heflin, and shot his cousin by mistake. The defense of the accused was that the shooting was accidental.
Eleven years or more prior to the present controversy, and before Heflin had married the sister of the accused, he had shot Heflin in the ear, claiming to have found him and his sister in a compromising position. “There was a little scrap afterwards over it,” but nothing further was done, Heflin “had some trouble with him,” but had “gotten along with him.” Mrs. ■Heflin testified that “they had trouble several times.” The accused, when drinking, was “fussy,” and Mrs. Heflin testified that “more or less every time he is drinking he takes his spite out on me;” that he struck her once or twice, and that “whenever he gets drunk I just try to keep out of his way.”
On Saturday night, November 21, 1926, there was a corn-shucking at' the home of the father of the accused, at which there were present, on the invitation of the father, the accused, Cal Heflin and his wife, Lamar Colvin, Will Colvin and several others of the family connections. During the shucking, some kind of intoxicating drink was passed around several times, and all of them, more or less, “felt their liquor.” About ten o’clock they were invited to the house to supper. The house contained but two rooms, a kitchen and another room, which were separated by a vestibule or hall about four feet square. When the parties came to
*667 “Q. The effect then was what you said, that he didn’t hit the object he was aiming at?
“A. That he shot to hit something or some person and that hitting Lamar Colvin was an accident, but that the shooting was not' an accident. That was what I got from his expression.”-
The testimony shows that all of the parties were drinking, and one witness, a preacher, says that the accused was “about two-thirds drunk,” but the testimony for the Commonwealth abundantly shows that he knew very well “what he was doing.”
No complaint is made of the action of the trial court in granting and refusing instructions, and it‘is admitted that “the evidence for and against the petitioner on the merits of the ease was such'as that the jury could have convicted or acquitted, the petitioner claiming the shot fired was the result of an accident, while the theory of the Commonwealth was that it was a wilful and deliberate, shooting.” Hence, the verdict cannot be said to be contrary to the evidence.
■ The ground on which reversal is sought is the admission of improper evidence. There are a number of specifications on this subject, but they may all be reduced to two: (1) Did the trial court err in permitting Cal Heflin to testify as to the reputation of the accused for peace and good order? (2) Did the trial court err in permitting Cal Heflin and his wife to testify as to1 the shooting of Cal Heflin in the ear by the accused more than eleven years ago?
There is much to be said in favor of putting before the jury a man’s general reputation in the community relevant" to the character of the offense with which he is charged, though not first put in issue by him, but it is conceded by the Attorney
The trial court, however, thought that the accused had put his reputation as a peaceable and orderly man in issue by his cross-examination of a witness for the Commonwealth. That cross-examination was as follows:
“Q. What effect does liquor have on him?
“A. Well, I don’t know.
“Q. Doesn’t it make him wild and crazy?
“A. It seemed that way. ■
“Q. He is not that way when he is not under the influence of liquor, is he?
“A. No, sir.
“Q. And he was that way that night, wasn’t he?
“A. Yes, sir.”
The same witness, later on, also testified that when the accused got drunk, he was “right fussy.” The. question: “Doesn’t it make him wild and crazy?” conveys the idea that he was not peaceable and orderly; that he would not respect the rights of others, and that he would act like one who was not merely insane but along with it was wild, unbridled, and bent on having his own way. Such was his condition when, under the influence of liquor, but he was not that way when not under such influence. The. necessary inference is that when he was sober, he was peaceable and orderly. This put in issue his character for peace and good order, when not under the influence of liquor, and warranted inquiry on that subject by the Commonwealth.
The trial court committed no error in refusing to exclude the testimony of Heflin and his wife as to; the shooting of Heflin by the accused eleven years previously. The evidence on this subject has been hereinbefore recited. Generally, it is not competent, on the trial of a criminal ease, for the Commonwealth to offer testimony of a prior, independent crime. Such testimony is not within the pleadings, and would be an unfair surprise and prejudicial to the accused, who does not come to the trial prepared to vindicate every act of his past life. But the exception to the rule is as well established as the rule itself, that such testimony is admissible, where it shows motive, intent
The single act of the prior shooting of Heflin, standing alone, would not have been admissible. But this act was simply a link in a chain, showing a well connected whole. The prior shooting was followed by “a little scrap afterwards over it,” and “trouble several times” between the parties, by hostilities towards Mrs. Heflin and assaults on her; and on the night of the shooting the accused called for his gun that he might Complete the job he had begun eleven years before; and a short while afterwards, on the night of the shooting, he stated that the shooting was not accidental, but that he “got the wrong man.” The prior shooting is fully connected with the offense * on trial by the declarations of the accused himself, and the trial court committed no error in ■ admitting the testimony relating thereto. It evinced both motive and intent.
It is true that considerable time” elapsed between the first offense and the present one, but they were connected by the subsequent acts and declarations of the accused, especially on the night of the shooting, and the trial court did not abuse its discretion in admitting evidence, thereof.
We find no error in the proceedings of the trial court and its judgment is affirmed.
• Affirmed.
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