Lowrey v. State ( 1948 )

BRICKEN, Presiding Judge.

No question is involved as to the regularity of the proceedings in the trial of this case as shown by the record proper.

The defendant was indicted, charged with the offense of murder in the first degree, in that “he Unlawfully and with malice aforethought, killed James Belton Lowrey, by shooting him with a gun or pistol,” etc.

In answer to the indictment, upon arraignment, he interposed his plea of not guilty, and (2) not guilty by reason of insanity.

The trial resulted in the conviction of defendant for the offense of manslaughter in the first degree and punishment fixed at imprisonment in the penitentiary for a period of five years.

The evidence, in the transcript, portrays a most unfortunate tragedy, wherein the father, admittedly, killed his own son. Under his plea of not guilty the defendant relied ttpon self defense. It appears also that this appellant was grievously wounded in the mutual combat, as the evidence discloses he was shot several times by his son. The evidence in this connection was in conflict. That for the State, tended to show that defendant not only entered into the fight willingly, but by words, acts and conduct contributed to and brought on the difficulty which resulted in the death of his own son, James Belton Lowrey.

The defendant, on the other hand, strenuously insisted that he was forced to take the life of his son in order to protect his own life, or to save him from suffering great injury and bodily harm. His own evidence, which was corroborated by the testimony of other witnesses, tended to bear him out in the foregoing insistence. As stated, the evidence on this crucial issue was in sharp conflict, hence, for the determination of the jury.

Upon the trial the evidence was allowed to take a wide and unusual scope. We are of the opinion this was permitted by the learned trial judge in view of the dual pleas interposed in answer to the indictment. We see nothing in this connection which tended to injuriously affect the substantial rights of the defendant.

Pending the trial innumerable exceptions were reserved to rulings of the court. Able and earnest counsel for appellant filed copious and well prepared briefs. We have carefully, attentively and painstakingly examined and considered each and 'every ruling of the trial court complained of as error and have failed to find any ruling of the court which tended to erroneously and injuriously affect the substantial rights of the defendant. It would entail an almost unending task to discuss these innumerable questions in detail, and in view of the full, clear, exhaustive and correct instructions of the trial court, which covered every phase of the law involved in this connection, and to which no exception was reserved, it would serve no good purpose for this court to deal with or discuss in detail all of these insistences, which would necessarily result in the mere reiteration of the principles of law involved, which have been decided and announced for many years by the appellate courts of this State. The law of self defense, in its every aspect, and also pertaining to the plea of not guilty by reason of insanity, was fully and fairly given, not only in the most excellent oral charge of the court, which charge consumed about fifteen pages of the transcript, but also in the given charges requested by defendant, which were about sixty in number.

On the two material issues involved in this case, the evidence as to each issue, was in conflict and was for the jury to consider and determine.

We are clear to the opinion that it affirmatively appears that a fair and impartial trial, such as the law contemplates and provides, has been accorded the accused in this case. The evidence upon each issue was ample to justify the jury in its verdict, and to sustain the judgment of conviction pronounced and entered.

Affirmed.