
    Wilson v. Commonwealth.
    (Decided Sept. 21, 1910.)
    Appeal from Trigg Circuit Court.
    1. New Trials — Review.—Under sec. 281, Cr. Code, as amended by Acts 1910, page 269, tbe rulings of the court 'on motions for a new trial are subject to exceptions, and any error of the court in refusing a new trial may be reviewed by the Appellate Court.
    2. Same. — In considering an appeal on a motion for a new trial under Criminal Code, sec. 281, as amended by Act 1910, the court will not disturb the verdict of the jury unless it is palpably against tbe evidence.
    MAX HANBERRY and ROBT. CRENSHAW for appellant.
    JAS. BREATHITT, Attorney General, and TOM B. McGREGOR, Assistant Attorney General, for appellee.
   Opinion- op the Court by

Judge Hobson

Affirming.

A. A. Wilson shot and killed Alfred Hendricks. He was indicted for murder; on a trial of the case he was fonnd gnilty of manslaughter, and his punishment fixed at confinement in the penitentiary for twenty-one years. The facts leading np to the homicide as shown by the Commonwealth are briefly these: Wilson lived with his brother, who had a telephone on the same line with Hendricks. Wilson used abnsive language over the telephone to Hendricks and Hendricks had a warrant issued against him for disorderly conduct. They had been on bad terms for some time. After tbe warrant was issued, Wilson said to one witness that Hendricks had a bill against him now for cursing him over the telephone, and that be expected that it would cost bim something, but if it did be was going to have a trial down there that would cost bim nothing. When they appeared before tbe magistrate, tbe magistrate fined Wilson $5, and Hendricks having left tbe room, the magistrate urged Wilson to stop tbe trouble, and went on to give bim some advice in that line. Wilson finally said that it was bard to live all bis young - days and have to kill bim. They went from there to tbe county judge’s office to draw up a replevin bond, and there, according to tbe testimony of another witness, Wilson said be would get him before be left town. After leaving tbe county judge’s office, Wilson went down to the- drug store. Hendricks was standing on tbe other side of the street talking to some persons. Wilson on bis way to tbe drug store went by Hendricks, and pushed against bim as be passed, but nothing was said. He then went on to tbe drug store, got a pistol which be bad left there, put it in bis pocket, and coming out of tbe door and pointing in tbe direction of Hendricks, said in a loud voice, “He has had me up six times,” and using a very abusive epithet, be added, “There he stands over yonder;” a few minutes after this be started across tbe street, and when he got near Hendricks pushed against bim a second time. At this Hendricks turned and struck bim. A fight followed between them in which Wilson drew his pistol and shot Hendricks, who died shortly afterwards.

According to the testimony for the defendant be did not make any of tbe threats against Hendricks testified to by tbe witnesses for tbe Commonwealth; be did not push against bim as be went to tbe drug store, or as he came from it; be went from tbe drug store across tbe street to get a whip be had left over there, and when he got near Hendricks, Hendricks began the difficulty by attacking bim; be backed and told Hendricks that be wanted no difficulty, and Hendricks pressed upon him and was apparently about to draw bis pistol when Wilson drew bis pistol and fired.

It will thus be seen that tbe evidence was very conflicting. There is perhaps a slight numerical preponderance in favor of tbe defendant, but there are circumstances in tbe case sustaining tbe testimony for the Commonwealth. The chief ground urged on the appeal for reversal is that a new trial should be granted the defendant on the merits.. Under section 281 of the Criminal Code, as it originally read, the decisions of the court on a motion for new trial were not subject to exception, and under this provision it was held by this court that a judgment of conviction could not be reversed here if there was any evidence to sustain it. But the last G-eneral Assembly struck out this provision of section 281 of the Code (See Acts 1910, p. 269), and now the rulings of the court on motions for new trial are subject to exceptions, and any error of the court in refusing a new trial may he -reviewed here. Spencer v. Commonwealth, 122 S. W., 800, and the cases therein referred to, were decided under section 281 of the Code before it was amended and are no longer applicable. But while this is true we cannot disturb the finding of the jury here. There was abundant evidence by the Commonwealth to warrant' the conclusion ■ of the jury, if the jury believed the Commonwealth’s witnesses. The credibility of the witnesses is for the jury, and this court will not disturb a verdict becau.se the jury believed one set of witnesses rather than another. The verdict must be palpably against the evidence or it cannot be disturbed.

The deceased when he was in extremis and when he knew that he was dying, in stating why Wilson shot him, said, “He run into me twice, or run against me twice and shot me.” This is a statement of the facts of the homicide. It is not an expression of opinion. The court properly excluded his further statement, “It is too bad to be run over and then shot and killed.”

The instructions to the jury aptly and clearly presented the law of the case. The court properly modified the instruction as to self-defense by, in effect, telling the jury that if the defendant sought out the deceased with the intention of raising a difficulty with him for the purpose of killing him, he could not be acquitted on the ground of self-defense, unless he in good faith abandoned his purpose before the shooting. While it is true that during the fight the defendant backed at least twenty feet, so short a time elapsed from the beginning of the difficulty to the end that the jury were well warranted in concluding that the defendant had not abandoned his purpose which he had in mind when he crossed, the street and began the difficulty; and that he did cross the street to begin the difficulty is borne out by the. testimony as to Ms declarations and conduct about that time. On the whole case we conclude that the defendant has had a fair trial, and that the verdict of the jury should not be disturbed.

Judgment affirmed.  