In the absence of the affidavit from the record, there is no basis on which this court could determine that there was error in the denial of the continuance. See Pennington v. Commonwealth, Ky. 371 S.W.2d 478; Abdon v. Commonwealth, 237 Ky. 21, 34 S.W.2d 742; Litteral v. Commonwealth, 223 Ky. 402, 3 S.W.2d 775. The judgment is affirmed.
A confession is a voluntary statement made by a person charged with the commission of a crime, communicated to another person, wherein the facts acknowledged by him indicate criminal culpability on his part and discloses the circumstances of the act or the share and participation which he had in it. Hedger v. Commonwealth, 294 Ky. 731, 172 S.W.2d 560 (1943) and Abdon v. Commonwealth, 237 Ky. 21, 34 S.W.2d 742 (1931). The statements attributed to the appellant were not confessions. He did not confess guilt of any charge. At most the statements may be taken as an admission that a pistol in his possession fired the fatal shot.
show that the chickens in question were stolen from Pennington and its effect was not destroyed by the contradictory testimony of Pearson's confederate, Collins, that the chickens were stolen not from Pennington but from Mrs. Asbill's home near Sand Gap. Neither, we conceive, does the mere fact that Pearson, when testifying in his own behalf in the circuit court, thus changed his testimony with respect to the ownership of the chickens which they had stolen, in direct contradiction of his earlier given sworn statement that they stole the chickens from Pennington, as charged in the indictment, serve to conclusively determine that factual issue, as to the ownership of the stolen chickens, so as to take the determination of such issue away from the jury, the rule being that the jury's verdict, when based on any competent and substantial evidence, must be sustained, unless so palpably against the evidence as to compel the conclusion that the verdict resulted from passion and prejudice. Abdon v. Commonwealth, 237 Ky. 21, 34 S.W.2d 742. Such testimony given by the appellants and their witnesses in contradiction of the testimony of the commonwealth's witnesses served only to present the conflicting testimony on this factual issue to the jury, making here applicable the rule above stated.
Ratliff v. Commonwealth, supra; Sargent v. Commonwealth, 263 Ky. 429, 92 S.W.2d 770. The legislature has declared by Section 240 of the Criminal Code of Practice that unless it be made in open court, a confession of an accused person will not warrant a conviction unless accompanied by other proof that such an offense has in fact been committed. From the beginning it has been held that under the statute it is the duty of the trial court to instruct the jury accordingly unless the corpus delicti has been proved by evidence other than the alleged confession, or unless the defendant's commission of the crime has been proved by other witnesses and the defendant has repeated his confession in his testimony, or unless the statement of the accused amounted only to an admission of an incriminating act. Abdon v. Commonwealth, 237 Ky. 21, 34 S.W.2d 742; Cornett v. Commonwealth, 240 Ky. 694, 42 S.W.2d 901; Herron v. Commonwealth, 247 Ky. 220, 56 S.W.2d 974; Sargent v. Commonwealth, supra. And if there be doubt that a crime has been committed, such as where the corpus delicti has not been conclusively proved, or has been established only by an extra-judicial confession of the accused, a specific instruction under Section 240 of the Code of Criminal Practice should be given. Higgins v. Commonwealth, supra; Bond v. Commonwealth, 236 Ky. 472, 33 S.W.2d 320; Gilliam v. Commonwealth, 263 Ky. 342, 92 S.W.2d 346. Moreover, where there is contradictory evidence as to whether a confession was in fact made, it is error for the court to assume that it was made.
"Where a confession by an accused is proven, the rule relating to instructing the jury in regard to it, as provided in section 240, Criminal Code, is, if the corpus delicti of the crime is clearly proven by other evidence independent of the proof of the confession by the accused, an instruction will not be given in accordance with section 240, supra; but if the proof, other than that of the confession, leaves it doubtful whether the crime has been committed, then the instruction should be given, as provided by section 240, supra." See, also, Abdon v. Commonwealth, 237 Ky. 21, 34 S.W.2d 742, and the cases therein cited. Since, in the instant case, the corpus delicti was clearly proved by evidence other than the admission of appellant Kenneth Gilliam, an instruction under section 240 of the Criminal Code of Practice was unnecessary.
There was before it evidence sufficient to sustain its verdict, its weight and credibility presenting a problem for the jury's decision, and its verdict is not palpably against the evidence when it was reasonable for the jury to find from the entire record the accused guilty of the crime charged. Shepherd v. Commonwealth, 236 Ky. 292, 33 S.W.2d 4; Barton v. Commonwealth, 240 Ky. 786, 43 S.W.2d 55; Abdon v. Commonwealth, 237 Ky. 21, 34 S.W.2d 742; Newsome v. Commonwealth, 236 Ky. 344, 33 S.W.2d 36; Tussey v. Commonwealth, 241 Ky. 91, 43 S.W.2d 351. The appellant's final objection relates to the instructions given upon the trial, which he insists, taken as a whole, are misleading, in that they relieve the commonwealth of its burden, and fail to give the appellant the benefit of his plea of insanity, in that he was required to exercise reasonable judgment before being allowed to defend himself, when under appellant's evidence he was insane at the time of the shooting.
Ratliff v. Com., 182 Ky. 246, 206 S.W. 497. In view of section 271 of the Criminal Code of Practice, this court will not disturb a verdict of guilty, unless it is flagrantly or so palpably against the evidence as to shock the conscience and compel the conclusion that the verdict was the result of passion or prejudice. Wells v. Com., 195 Ky. 740, 243 S.W. 1015; Brown v. Com., 226 Ky. 255, 10 S.W.2d 820; Abdon v. Com., 237 Ky. 21, 34 S.W.2d 742; Tackett v. Com., 229 Ky. 312, 17 S.W.2d 241; Jones v. Com., 230 Ky. 24, 18 S.W.2d 287. Viewed in the light of the evidence and these familiar rules, the transparency of the fallacy of the appellant's contention that the verdict is not sustained by the evidence is manifest.
This court is warranted only in reversing a judgment in a criminal case where it is so shockingly against all the evidence as necessarily to show passion, prejudice, or other unpermissible controlling factors. Bourne v. Com., supra; Saylor v. Com., 235 Ky. 78, 29 S.W.2d 629; Manns v. Com., 235 Ky. 325, 31 S.W.2d 390; Bright v. Com., 235 Ky. 781, 32 S.W.2d 351; Sexton v. Com., 236 Ky. 354, 33 S.W.2d 28; Abdon v. Com., 237 Ky. 21, 34 S.W.2d 742. It is a familiar rule of this court that the jury's finding on conflicting evidence is conclusive. Henderickson v. Com., 235 Ky. 462, 31 S.W.2d 712; Shepherd v. Com., 236 Ky. 290, 33 S.W.2d 4; Miller v. Com., 236 Ky. 448, 33 S.W.2d 590. Applying these rules to the facts proven, we are not prepared to say that the evidence was insufficient to authorize and sustain the verdict of the jury.
The function of finding the ultimate facts from conflicting testimony is imposed by law upon the jury." Perkins v. Commonwealth, 240 Ky. 129, 12 S.W.2d 297; Utterback v. Commonwealth, 190 Ky. 138, 226 S.W. 1065; Jordan v. Commonwealth, 340 Ky. 391, 42 S.W.2d 509; Abdon v. Commonwealth, 237 Ky. 21, 34 S.W.2d 742; Brown v. Commonwealth, 226, Ky. 255, 10 S.W.2d 820; Fannin v. Commonwealth 200 Ky. 635, 255 S.W. 514. 2. It is next urged that the commonwealth introduced "illegal evidence" in four instances complained of: First, as to appellant's visit to the Freye home; second, as to the shots fired into that home and with which the appellant was accused; third, as to the conversation had between Brock and Freye and Mason at Mason's home, when appellant was absent; and, fourth, in admitting testimony of Mrs. Mason to the effect that her husband, just before his death, told her that the appellant, Osborne, had shot him.
There is ample evidence to sustain a conviction. A verdict is not flagrantly against the evidence if there is any competent evidence to sustain the judgment of conviction. Abdon v. Commonwealth, 237 Ky. 21, 34 S.W.2d 742; Shepherd v. Commonwealth, 236 Ky. 290, 33 S.W.2d 4; Newsome v. Commonwealth, 236 Ky. 344, 33 S.W.2d 36; Wilson v. Commonwealth, 140 Ky. 36, 130 S.W. 793; Blanton v. Commonwealth, 147 Ky. 812, 146 S.W. 10; Abram v. Mallicoat, 147 Ky. 817, 145 S.W. 764; Gilbert v. Commonwealth, 228 Ky. 19, 14 S.W.2d 194. It is next argued that, before a conviction can be had upon the evidence of an accomplice, it must be corroborated by other evidence tending to connect the defendant with the commission of the crime.