Opinion
Decided April 24, 1925.
Appeal from Bell Circuit Court.
JAMES G. ROLLINS, ISHMAN G. LEABOW, D.Y. COLSON and E.F. BAKER for appellant.
FRANK E. DAUGHERTY, Attorney General, and CHARLES F. CREAL, Assistant Attorney General, for appellee.
Affirming.
For the third time appellant has been found guilty of the murder of Roy Sasser, and his punishment fixed at imprisonment in the penitentiary for life. As fully as necessary, the facts are stated in the opinion in the first case, which may be found in 193 Ky. 835, 237 S.W. 1066. The second opinion may be found in 198 Ky. 517, 249 S.W. 764.
Ten grounds for a new trial were filed. The first two relate to the selection and empaneling of the jury, and hence cannot avail appellant here. See section 281, Criminal Code, and cases cited there. The third ground has been withdrawn by his attorneys as untenable. In his fourth ground he insists that the court admitted incompetent testimony against him, and by the tenth, he says the venue was not established. We have read not only the 564 pages of the bill of evidence in this appeal, but the equally voluminous bills on the former appeals, and find these same questions were involved in both the former appeals, practically the same witnesses testified, in practically the same words. Therefore, whether raised or not raised, in the former appeals, mentioned or not mentioned in the former opinions, they are now settled. See Graziani v. Ambrose, 201 Ky. 466, 257 S.W. 21; Ware v. Saufley, 203 Ky. 276, 262 S.W. 262.
Appellant's fifth, sixth, seventh, eighth and ninth grounds were not considered by him to be of sufficient moment to discuss in his brief, and we are disposed to accept his appraisement of them. Harlan Coal Coke Co. v. Davidson, 203 Ky. 580, 262 S.W. 936.
The judgment is affirmed.