
    Slaven v. Commonwealth.
    June 15, 1943.
    Will H. Caylor for appellant.
    Hubert Meredith, Attorney General, and W. Owen Keller, Assistant Attorney General, for appellee.
   Opinion of the Court by

Judge Rees

Affirming.

This is an appeal from a judgment sentencing Dink Slaven to imprisonment for a term of three years for maliciously shooting at Obie Winchester without wounding him. The principal ground urged for reversal of the judgment is alleged insufficiency of the evidence to sustain the verdict.

The parties live in a remote section of McCreary county. On the day the difficulty occurred, in Septemher, 1941, appellant, accompanied by his wife and other members of his family, walked from his home across a mountain, a distance of 6 miles, to the home of Loss Hall, a relative. Appellant carried a 22-caliber rifle. Just before the Slavens reached the Hall home they met Obie Winchester, his 12-year-old son, Bill Winchester, and Mr. and Mrs. George Troxell. The two Winchesters and Mrs. Troxell testified for the Commonwealth and stated that appellant cursed Obie Winchester as soon as they met, threatened to kill him, and raised the rifle to his shoulder. Bill Winchester, who was carrying a one-year old child of the Troxell’s, jumped in front of his father and asked appellant not to shoot. Appellant fired the rifle twice according to some of the witnesses for the Commonwealth and three times according to others, aiming at Obie Winchester who ran after the first shot. Mrs. Troxell grabbed her child from Bill Winchester and ran behind a building nearby. After appellant had fired two or three shots Bill Winchester drew his pistol and shot several times in the direction of appellant. No one was wounded. Appellant testified that Obie Winchester had whipped appellant’s boy about two years before the difficulty, in September, 1941; that he disliked Winchester, and cursed him when they met in the road. He admitted that he fired one shot, but claimed that he shot at the pistol in Bill Winchester’s hand after the latter had fired several shots. George Troxell, introduced as a witness by the appellant, testified that he and his wife and the Winchesters were walking along the road when they met Dink Slaven. He said that Slaven fired the first shot, and when asked to repeat the first words spoken after the meeting answered:

“Dink Slaven said: ‘If you are not ready to die, get ready to die. ’ He throwed his 22-caliber up and went to shooting.”

Appellant’s contention that the evidence was not sufficient to take the case to the jury and to sustain its verdict obviously is without merit.

Some complaint is made of instruction 1-A which qualified the instruction on self-defense, but the evidence fully warranted the qualification. Harris v. Commonwealth, 140 Ky. 41, 130 S. W. 801; Toncray v. Commonwealth, 291 Ky. 471, 165 S. W. (2d) 8; Roberson’s Criminal Law and Procedure, sec. 327.

The judgment is affirmed.  