
    Blackburn v. Commonwealth.
    Nov. 3, 1944.
    E. J. Pieklesimer and W. A. Daugherty for appellant.
    Eldon S. Dummit, Attorney General, and M. J. Sternberg, Assistant Attorney General, for appellee.
   Opinion of the Court by

Chief Justice Cammack

Affirming.

Dennis Blackburn, along with Ms brother, Allen, and Junior Smith, was charged with the crime of murdering .Alex Rowe on the night of June 19, 1943. Upon his separate trial Dennis was found guilty of the crime of manslaughter and Ms punishment fixed at five years in prison. On this appeal he is insisting the verdict is flagrantly against the evidence.

Dennis, his brothers, Allen and Jess, Junior Smith and several other persons lived in shanties near a sawmill on Fed’s Creek. Jess’.home was some 300 feet from that of Dennis. Around six o ’clock of the day of the. killing Alex, his brother, Wilson, and Hansel Murphy came to the Blackburns and tried to get Jess to drive them in Ms truck to the state line to get some wine and beer. Jess did not go, but he let Dennis drive the truck. The parties returned with their drinks around nine o ’clock. ■ The Rowes and Murphy went down the road a short distance. As they were going in the direction of their home they stopped at Allen Blackburn’s shanty and listened to the radio and talked a while. Soon an argument developed and from this point on there is sharp conflict in the evidence as to the conduct of the parties up to the time of the killing. . .

The Commonwealth’s version is that Allen left the porch, went into his house and turned off the radio.. His wife screamed and then Dennis ran in.the house. The Rowes and Murphy started down the road in the direction of Jess’ house. When they were about 60 feet from Allen’s house the Blackburns, who were armed, began following them down the road. Alex pointed his pistol in the air and fired once.- As the Blackburns were gaining on them, Alex ran around Jess Blackburn’s house to the side where the truck was parked, and Wilson Rowe ran to the other side. Wilson had run about 30 feet from the house when a shotgun was fired. Dennis, Allen and Junior Smith went over to the sawmill and talked with the nightwatchman. They were swearing and cursing and said if they did not get the Rowes that night they would get them the next day. Allen Blackburn fired a shot while he was at the sawmill. Alex’s body was found near the truck. The charge from the shotgun blew out his left eye, and, apparently, he died instantly. His pistol was found near his body.

The testimony for Dennis shows that when Allen started in the house Alex drew his pistol and pointed it at his back and began to back away from the porch. Dennis ran around the house and told Allen’s wife to blow out the light, and then ran in the direction of his home. As he approached the door he looked back and' saw Alex fire a shot in his direction. He heard Alex utter an oath and say he was going down and kill his brother, Jess. After about 15 minutes he and Allen started in the direction of Jess’ home to warn him. Dennis met Junior Smith, who had borrowed a shotgun from Silas Stewart. Dennis took the gun, and as he approached the corner of the garage near Jess’ home he saw Alex go between the truck and the house. As he came in, view Alex crawled from beneath the truck and said, ‘ ‘ Oh, yes, God damn you, I’ve got you this time,” and cocked his pistol. Dennis wheeled and fired the shotgun. He then ran over to the sawmill. Dennis said it was several minutes before he knew he had killed Alex.

Clearly the case was one for the jury. The Commonwealth’s evidence showed the Blackburns were the aggressors throughout the affray, and even after Dennis had fired the fatal shot they were heard making; threats against the Rowes. Even if the defendant’s version of the happenings at Allen’s home be taken as true, his own testimony puts him in the position of following up the Rowes after arming himself with the shotgun. There is no evidence showing that he called to Jess, or in any manner sought to warn him as he approached his home. In the meantime Allen had borrowed a pistol and was likewise following the Rowes. There was ample evidence of probative value to warrant tbe submission of the case to tbe jury and to sustain its verdict. Certainly it constituted more than a scintilla. That was sufficient. Carpenter v. Commonwealth, 287 Ky. 819, 155 S. W. 2d 240.

Judgment affirmed.  