
    GROSS v. COMMONWEALTH.
    Court of Appeals of Kentucky.
    March 20, 1951.
    W. H. Lewis, Hyden, for appellant.
    A. E. Funk, Atty. Gen., H. D. Reed, Jr., Asst. Atty. Gen., for appellee.
   CAMMACK, Chief Justice.

Howard Gross was indicted on a charge of murdering Levi Muncy. He is appealing from a conviction of voluntary manslaughter, for which he received a 10 year sentence. The sole ground urged for reversal is that the verdict was palpably against the evidence and that the appellant was entitled to a peremptory instruction to find him not guilty on the grounds of self defense and apparent necessity. There is no question but that the appellant killed Levi Muncy by shooting him in the head at close range with a shotgun. The only issue is whether the appellant was acting in defense of himself and his wife at the time.

The shooting occurred on the evening of November 5, 1949. A number of people had gathered at the home of Shelby HalL Among those present was the deceased, who, with others, was engaged in drinking, dancing and playing a juke box. Gross and his wife appeared on the scene, according to his story, on the invitation of one of the Hall girls, who said she was afraid because some of those present were drunk. Sometime thereafter, Muncy and Gross got into a fight, as a result of which Gross received severe cuts on his head and chest. It is at this point that the proof becomes conflicting.

According to the Commonwealth’s evidence, Gross went out to the home of George Hall nearby and then to his own home, where he got a shotgun. He returned to the Hall home and shot Levi Muncy in the head some five or ten minutes after the original fight.

According to Gross’ proof, Muncy attacked him with a knife. He was carrying his shotgun when he arrived at Hall’s home and set it outside the front door. Muncy was drinking and violent and attacked him. He backed up out the front door, grabbed his shotgun and shot Muncy just as Muncy was turning on his wife.

The evidence was conflicting as to whether Gross shot in defense of himself and his wife, or killed Muncy after leaving the Hall place and getting his shotgun for the purpose of killing Muncy. The Commonwealth’s position is supported by the testimony of Sheldon Shepherd, Fred Asher, Joe Henry Napier and others. The members of the jury are the judges of the credibility of the witnesses and the weight to be given their testimony. Swafford v. Commonwealth, 309 Ky. 178, 216 S.W.2d 919.

Judgment affirmed.  