Opinion
Decided October 8, 1926.
Appeal from Breathitt Circuit Court.
SOUTH STRONG for appellant.
FRANK E. DAUGHERTY, Attorney General, for appellee.
Reversing.
The appellant, having been convicted of the offense of malicious shooting and wounding and sentenced to two years in the penitentiary, brings this appeal from the judgment.
His first ground for reversal is that the verdict is flagrantly against the evidence. There were but four witnesses who testified about the facts of the shooting. Two of these, Billie Noble, the victim of the shooting, and his wife, Bertha Noble, testified for the Commonwealth. If their testimony is to be believed, the shooting was without excuse. The other two witnesses, the appellant himself and Brownlow Neace, testified for the appellant. If their testimony is to be believed the shooting was done in self-defense. The credibility of the witnesses is for the jury, and its verdict cannot be set aside, unless it is palpably against the evidence. Winchester v. Commonwealth, 210 Ky. 685, 276 S.W. 575; Deaton v. Commonwealth, 211. Ky. 651, 277 S.W. 1001. As the verdict in this case is not palpably against the evidence, the first ground for reversal is without merit.
Appellant next contends that his special demurrer to the indictment should have been sustained. He bases his argument on the proposition that the shooting occurred in Perry county and not in Breathitt, where this prosecution was instituted and tried. However, the indictment avers that the shooting occurred in Breathitt county. As the special demurrer admitted the facts pleaded in the indictment, it was necessarily and properly overruled. It is true that when this case came on to be tried the proof developed a dispute as to whether the shooting occurred in Breathitt county or in Perry county. But the court properly ruled that under the provisions of section 1146 of the Kentucky Statutes Breathitt county had jurisdiction since it was the county in which the indictment was found.
It is next contended that irrelevant and incompetent evidence was admitted over appellant's objection. The evidence complained of was irrelevant and incompetent, but, as the bill of exceptions shows, it was introduced in rebuttal to like irrelevant testimony introduced by appellant himself. Although we cannot reverse the case on this ground, yet as there must be another trial of it, the trial court will exclude all this evidence relating to the troubles and fights that occurred between Noble and Napier after the shooting here involved.
Lastly it is contended that the Commonwealth's attorney was guilty of improper argument. Appellant is correct in this position. The bill of exceptions shows that the Commonwealth's attorney in his closing argument, when commenting on the testimony of Brownlow Neace, appellant's only corroborating witness of the facts of the shooting, said:
"Here comes Brownlow Neace, another criminal, and testifies for the defendant Napier. They are here log-rolling for each other and this defendant Napier will be a witness for him. Brownlow Neace faces a murder trial in this court. They are both criminals and this community will be better off when they are both in the penitentiary."
There is no evidence whatever in the record that Brownlow Neace had ever been convicted of a felony or was a criminal or was facing a murder trial in the Breathitt or any other circuit court. Indeed my proof of this last fact, if it was a fact, would not have been competent. When it is considered that there were but four witnesses who testified or who could testify about the facts of this shooting, and that one of them was the victim and that another of them was the appellant, the destruction of the character of the witness who corroborated appellant necessarily left him in a very hazardous position. Indeed the purpose of the Commonwealth's attorney's attack on Neace was to put appellant in such a position. Due to his position in the community, the statements of a Commonwealth's attorney carry great weight with a jury. An unwarranted attack, such as we have here, carrying such weight, must necessarily be very prejudicial. It results therefore that the judgment in this case must be reversed, with instructions to grant the appellant a new trial in conformity to this opinion.
Judgment reversed.