Pennington v. Commonwealth , 262 S.W.2d 689 ( 1953 )

MILLIKEN, Justice.

Willard Pennington was convicted of the murder of Lillie Engle in Leslie County on October 6, 1952, and sentenced to life imprisonment in the state penitentiary. No specific reason for reversal is urged upon us unless it is the dubious character of the principal witnesses who testified against him.

Lillie Engle rode up Bad Greek of Greasy Creek of the Middle Fork of the Kentucky River to get some moonshine whisky, swap his horse, or both. He first stopped at Pennington’s home where he found Willard and Ruth Simpson. There was some discussion of horse trading between Lillie and Willard, no clear-cut deal effected, yet Lillie apparently rode off with some of Ruth’s money. He stopped at the next house up the creek where negotiations were begun for some moonshine. This was the home of Shelby Caldwell and Polly Jane Pennington and their children without benefit of clergy. Willard and Ruth soon appeared on the scene. What occurred is not exactly clear, but late in the afternoon Lillie rode off down the creek and Willard and Ruth left shortly after. The next morning Lillie’s body was found lying face up in the creek bed and an examination disclosed that he had died from buckshot wounds in the back. Shelby and Polly Jane helped identify the body, but Willard was indisposed.

Shelby Caldwell admitted he sold Lillie some moonshine, testified that Willard was “mad and white in the face” on his arrival at Shelby’s home, that Lillie and Willard evidently had had some trouble, and that Willard had threatened to kill Lillie after the latter had left the witness’ home. Shelby was an established illegal distiller and moonshine merchant besides his other accomplishment of serving two years for desertion from the army. He also was arrested for the slaying of Lillie Engle. It is charged that Polly Jane Pennington, now the lawfully wedded wife of Shelby Caldwell and the chief corroborator of his testimony, told her- sister,. Marie Pennington Griffitts, and her husband that it would be better for her father to go to the penitentiary than for Shelby because she and Shelby had three children to care for.

A shotgun which had been fired rather recently was found in Willard’s home, and none of the other guns in Shelby’s or Willard’s homes showed any evidence of being recently fired. Cartridges to fit the gun also were found there. Willard explained that Ruth had shot at a chicken hawk, and Ruth confirmed him. When Ruth Simpson, now Willard’s lawfully wedded wife, took the stand she attempted to clear Willard by saying that her damaging testimony at a previous trial was not the truth, but was given under duress, the fear of Shelby Caldwell. She had testified that when Willard came back after leaving his house with the shotgun he set it down by the radio and said “he guessed if -that rascal (meaning Lillie) was alive he wouldn’t do anyone else like that,” referring to the way Lillie had done him about the horse trade.

There is other evidence of a cumulative or impeaching nature. Shelby, Polly Jane and Willard, the appellant, all had been held for the killing, and there was direct evidence of prior ill feeling between Shelby and Lillie, but all of it was for the consideration of the-jury. Their verdict shows that they believed Willard did it, and we conclude that there is enough evidence to sustain their verdict. The instructions given were the customary ones for wilful murder, and there was no evidence to justify an instruction for manslaughter. Where the evidence is wholly circumstantial, every inference from it must be consistent with the defendant’s guilt and inconsistent with his innocence; it must go beyond mere suspicion and conjecture, and we think it did in the case at bar. It was consistent with his guilt and inconsistent with his innocence. Newton v. Commonwealth, 222 Ky. 817, 2 S.W.2d 661.

The judgment is affirmed.