Affirming.
The appellant, John Clair, was indicted for the *Page 365 murder of Joe Greenwell, and, on his trial, was found. guilty of manslaughter and his punishment fixed at confinement in the state penitentiary for a period of twenty-one years. He seeks a reversal of the judgment chiefly on the ground that the verdict is flagrantly against the evidence.
The homicide occurred at Wilhurst in Breathitt county on the evening of November 3, 1935, in front of a dance hall owned by Caesar Hurst. A dance had been in progress during the night, and the deceased, his wife, the appellant, and twenty-five or thirty other persons were present. Most of the crowd, including appellant and deceased, became intoxicated, and at about 2 o'clock in the morning the crowd began to disperse. Greenwell had parked his automobile across the road from the dance hall, and Mrs. Greenwell had entered the automobile before the difficulty resulting in the homicide occurred. She testified that she saw appellant staggering across the road calling Pruda Banks, a young woman who had attended the dance. He approached the car and she told him Pruda was not there. He began cursing and was in the act of reaching his hand in the car when Greenwell said: "Don't lay your hand in there, John, Pruda Banks is not in there, that's my old lady." Appellant cursed and threatened to kill Greenwell, and Greenwell shoved him away. Thereupon he struck Greenwell on the head with a cane, or pistol, and fired two shots. As Greenwell sank to the ground, he drew his pistol and fired one shot, and appellant then fired two or three more shots. Greenwell was shot five times, and four of the bullets entered his left chest. Appellant was struck by one bullet, and was severely wounded. The deceased had a .30-caliber Luger automatic pistol, and appellant a .45-caliber Smith and Wesson revolver. Plummer Hollon testified that his automobile was parked in front of the dance hall, and that when he was about to leave appellant walked up and asked if Pruda Banks was in the car. He was told that she was not there, but seemed unconvinced and someone struck a match to enable him to see the occupants of the car. He then walked across the road to a car, and the witness heard him say: "Pruda, get out of there," and some one said: "John, that's my old lady." Almost immediately a woman screamed, and several shots were *Page 366 fired. The first shots were fired from a large pistol, and they were followed by the report of a smaller pistol. Harry L. Salmon lived about 600 feet from the dance hall, and was awake and heard the shooting. He stated that he noticed a difference in the reports of the two guns, and when asked which gun fired first, he said: "The first two were the loud report, then the third shot was a smaller gun, the way I heard it." Appellant testified that after he left the dance hall he saw Plummer Hollon and asked him if Pruda Banks was in his car. Hollon told him that she was not in the car, and he walked across the road with Frank Terrill. Greenwell came up, started an argument, and drew his pistol and fired at appellant two or three times, one of the bullets striking him in the side. He then drew his pistol and shot Greenwell. He was corroborated by several witnesses who testified that the deceased fired the first shot.
The evidence as to who was the aggressor was in direct conflict. According to the testimony of Mrs. Greenwell, the appellant was the aggressor, and the homicide was not justifiable. Her testimony is corroborated to some extent by the testimony of two other witnesses. It may be conceded that the preponderance of the evidence supports the appellant's theory of self-defense, but the credibility of witnesses must be determined by the jury, and the verdict of a properly instructed jury will not be disturbed because it believed one set of witnesses rather than another. Bailey v. Com.
Most of the proof showed that the shooting occurred at a point on the side of the road where the deceased's automobile was parked, and that after the shooting his body was lying near his automobile. Some of appellant's witnesses testified that the body was lying at another point several feet away, and, in rebuttal, the commonwealth introduced Eric Hatton, who contradicted the testimony of these witnesses as to the location of the body. Appellant complains of the introduction of this testimony on the ground that it should have been introduced in chief and not in rebuttal. There was no issue as to the location of the body until appellant introduced his proof. Under the circumstances, the evidence *Page 367 of which complaint is made was real rebuttal evidence, and the fact that it might have been introduced in chief did not preclude its admission in rebuttal.
After appellant had testified, D.B. Pelfrey was introduced by the commonwealth and asked if he was acquainted with appellant's general moral reputation in the community where he lived from what the people said about him who knew him. He answered that he was, and that appellant's reputation was bad. Appellant complains of the admission of the evidence because the proof of character was not limited to the time of the commission of the offense. White v. Com.,
When a defendant offers himself as a witness, he is subject to impeachment in the same manner as any other witness. In Steele v. Com.,
"In order to impeach a witness the evidence of bad character should be directed to the time of trial, and to this end, under proper circumstances, evidence of previous bad character is competent. While evidence of bad character at a time previous may tend to show the character of the witness at the present time, it should be admitted with caution. *Page 368 The evidence of bad character at a time long anterior to the day of trial should not be admitted until a basis is laid by other proof tending to show that the character is then bad."
The contention that the inquiry as to the character of appellant should not have been extended beyond the time of the discovery that the offense had been committed cannot be sustained.
No complaint is made of the failure of the court to admonish the jury as to the purpose of the impeaching testimony, but, in the absence of a request for such an admonition, there was no error in this respect. As pointed out in Rogers v. Com.,
"It is now insisted that when this answer was made the court should have admonished the jury that this evidence was admitted solely for the purpose of impeaching appellant as a witness. Doubtless the trial judge would have so admonished the jury if his attention had been called to it at the time, but the failure of the court to so admonish the jury cannot be relied on as error unless the attention of the court has been drawn to the matter by a request that the jury be so admonished."
In Stigall v. Com.,
"This evidence having been introduced in rebuttal, it may have been proper for the court to have admonished the jury of its purpose; but the record does not disclose that appellant asked the court to admonish the jury, and for that reason appellant cannot now complain. The court is under no obligation to admonish a jury with respect to the purpose of evidence, when it is competent for any purpose, unless requested to do so by the complaining party."
See, also, Fry v. Com.,
The rule requiring the defendant to request the court to admonish the jury as to the effect to be given to impeaching testimony provides for a fair practice on this subject. As was said in Ochsner v. Com., supra, "If the trial court's attention were called at the time to what is frequently a mere omission, it would have been corrected. To allow reversals for such lapses is to put a premium upon sharpness, rather than tend to the just and fair administration of the law." *Page 370
The appellant criticizes certain remarks made by the commonwealth's attorney in his closing argument to the jury, but it does not appear that any of them were prejudicial to his substantial rights. His chief criticism is directed to the following statement:
"Let's do our duty and if the Governor of our state wants to turn this man loose and discharge him, we can say we have done our duty and let the Governor pardon him if he wants to."
The court sustained an objection to the statement, and instructed the jury not to consider it. But, even if the objection had been overruled, it would not have been prejudicial. We have refused to reverse judgments of conviction where far more objectionable statements were made. Lee v. Com.,
Appellant finally complains of instruction No. 1 because it did not follow the language of the indictment. and require the jury to believe that Joe Greenwell died within a year and a day after the shooting. This novel contention is without merit. The shooting occurred. November 3, 1935, and the evidence showed that Greenwell died instantly. The trial was held September 18, 1936, less than a year after the homicide occurred. In Early v. Com., 70 S.W. 1061, 1062, 24 Ky. Law Rep. 1181, a similar contention was made, and the court said:
"Death resulted within less than five minutes after deceased received the wounds, and there was no occasion for submitting the question as to whether he died within one year and a day after being shot."
We find no error prejudicial to appellant's substantial rights, and the judgment is affirmed. Whole court sitting.