
    Bentley v. Commonwealth.
    (Decided Sept. 27, 1938.)
    E. J. PICKLESIMER for appellant.
    HUBERT MEREDITH, Attorney General, and J. M. CAMPBELL,. Assistant Attorney General, for appellee.
   Opinion op the Court by

Stanley, Commissioner—

Affirming.

The appellant, Hack Bentley, killed A. D. Mullins; with a rock, has been convicted of manslaughter and sentenced to two years’ imprisonment. He seeks a reversal of the judgment upon the grounds that the verdict is flagrantly against the evidence and the court erred in failing to give him the right to defend certain of his companions as well as himself and his brother-

A. D. Mullins, his brother, Paul, and Paul’s wife were in Milt Branham’s automobile on their way home from voting in the primary election of 1937. They came to what is called Rocky Gap, where the Sooky Creek road comes into the State highway. Paul Mullins went into a saloon and bought a pint of whiskey. After he came out he gave two of his friends a drink. The defendant, his brother, Jarvey Bentley, Roy Justice, Earl Justice and Fred Coleman were standing nearby and someone of them asked for a drink of the liquor. Paul did not know them and said something to that effect. About the time he got in the automobile Jarvey Bentley got on the running board and, with an oath, demanded some of the liquor. The defendant, Hack Bentley, was nearby and one or the other, or perhaps both, cursed the Mullinses violently as the car started off. A. D. Mullins said, “That is too much to take,” and had Branham stop the car. As we understand the evidence, A. D. Mullins was the first to get out and he was followed by Paul and his wife. According to the testimony ■of the Commonwealth, Hack and Jarvis Bentley were coming on A. D., with rocks in their hands, though he had none and was not otherwise armed. He was a small man and badly crippled. The defendant hit him in the head with a rock, and Jarvey Bentley began beating Paul over the head with a rock. The Mullinses claim they did not pick up any rocks until the other side had started after them. Branham’s testimony is to the effect that the man who had hit A. D., and knocked him ■down was kicking him while the fight between Jarvey and Paul and his wife continued. The Bentleys were strangers to Branham and apparently known only by sight to the Mullinses. A. D. Mullins died three weeks later as the result of a fractured skull. During the fight the other companions of Bentley were standing to one side and took no part in it. Such is the evidence of the ■Commonwealth.

According to the defendant’s evidence, Jarvey Bentley was standing with his hand on the automobile and a man on the front seat was shaking a bottle of whiskey. He came away and Hack asked him what the trouble was and he replied the Mullins boys were trying to start trouble. He took his brother by the arm and said, “We don’t want any trouble.” He pushed him •over a hill, down through some bushes, and then they got started over the hill toward the Sooky creek road. .The Justice boys and Coleman were sitting on the side of the road and he asked if they were ready to go home. About that time he looked around and the two Mullins boys and the woman were coming on them. Each man had two rocks and the woman one. The defendant then picked up a rock and as he straightened up the woman hit his brother Jarvis with a rock. Jarvis was insisting that her husband take her away, but the husband came into the fight and took it up himself. The defendant interceded trying to settle the fight. Then it was that A. D. Mullins threw a rock at Paul, who fell, and then he, the defendant, threw a rock at A. D., who also fell. Asked why he did so the defendant replied, “I hit him to try to keep him from hitting my brother; I didn’t hit him to try to kill him; nothing like that; I didn’t have the first thought of killing him.” He repeated that he threw the fatal rock because he believed A. D. Mullins would kill his brother or do him great bodily harm. Jarvis Bentley’s detail of the situation absolves his brother and himself of any instigation of the fight or any kind of wrongdoing. He makes it appear that the Mullinses were the aggressors and that they attacked the Bentleys without any cause whatsoever.

All parties claimed to have been sober. There is some little corroboration of each side’s story. We think this recitation of the evidence makes it manifest that it abundantly supports the verdict. The jury were justified in accepting the version of the Commonwealth’s witnesses, for it was reasonable to infer the refusal of the Bentleys’ demand for the whiskey infuriated them and precipitated the attack. No reason is shown why the Mullinses should have begun the trouble. It is certain also that there was no error in failing to instruct that the accused had the right to defend Roy and Earl Justice and Fred Coleman from harm at the hands of the deceased. The evidence is positive and uncontradicted that none of them were involved and that they were only spectators.

The judgment is affirmed.  