Daniel Selby Kills Thomas Black, Laurel, 1903

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[September 19, 1903] -

Accidentally Killed.

London, Ky., Sept. 18. -- [Special.] -- Thomas Black was shot and instantly killed at Pittsburg, two miles from this place, this evening. Andrew Patterson and a man named Feltner were scuffling over a pistol, when the weapon was accidentally discharged. Black was a bystander. [1]

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[April 26, 1904] - 

Court of Appeals of Kentucky.

SELBY

v.

COMMONWEALTH.

April 26, 1904.

*222 James Sparks and D. K. Rawlings, for appellant. N. B. Hays and Loraine Mix, for the Commonwealth.

NUNN, J.

Daniel Selby, who was indicted in the Laurel circuit court for the murder of Thomas Black, was tried, and convicted of manslaughter, and sentenced to seven years and eight months in the penitentiary. The indictment charged that Selby killed Black by shooting him with a loaded pistol. The circumstances, as shown by the record, were about these: On the day the killing occurred, about 12 or 15 persons had been drinking beer from kegs which had been hauled out from a brewery situated in the town of Pittsburg, Ky., to a place in the woods. These parties had been at this place drinking from some time in the morning to about 4 o'clock in the afternoon. Most of them were considerably under the influence of liquor, the appellant probably being the drunkest, but all appeared to be in a good humor; no friction or ill feeling of any kind having arisen between them. Appellant had a pistol, and on one or two occasions he had it exposed, and spoke of its being a good one. He also boasted of his manhood and his ability as a wrestler. About this time he took his seat on the ground near where Thomas Black was drawing beer and handing it out to the crowd. Most of the witnesses say that he then had the pistol in his hand. The deceased, Black, remarked to him: “Dan, don't handle that pistol in that way. You might shoot me in the back.” Just at this instant Andrew Patterson, who was about six or eight feet distant from appellant, sprang to him and grabbed the pistol, and instantly the pistol fired and killed Black; and at that moment Andrew arose, with the pistol in his hand, and remarked, “Boys, you see that it was an accident,” and started after Dr. Givens. Not one of the witnesses present could tell who fired the shot-whether Patterson or the appellant. The trend of the testimony shows that it was the intention of Patterson to disarm the appellant, so that he, in his drunken condition, might not injure any one, accidentally or otherwise. The appellant also offered to prove by Dr. Givens that, when Patterson arrived, he told him that he had accidentally shot Black, and he wanted him to go to see him. Patterson was not introduced as a witness in the case, it appearing that at the time of the trial he was in the state of Indiana. The court refused to allow this statement of Patterson, as related by Dr. Givens, and also the statement made immediately after the shot was fired, to go to the jury as evidence; and of this action of the court, appellant complains.

The court did not err in refusing to allow Dr. Givens to testify that Patterson stated to him that he shot deceased accidentally. This would be hearsay, and could be proven only by Patterson himself.

In our opinion, the court erred in refusing to allow the statement made by Patterson instantly after the shot was fired, “Boys, you see this was an accident.” This was a part of the res gestæ. In the case of Stroud v. Commonwealth, 19 S. W. 976, 14 Ky. Law Rep. 179, the court said: “Whatever is said by a party to the occurrence, or a coadjutor, in cases of homicide, it is competent, to show the character or quality of the act; but the statement of a bystander, who is in no way acting in concert with the parties to the transaction, does not constitute a part of the res gestæ.” In the case of Bradshaw v. Commonwealth, 10 Bush, 577, the court said: “The cries or exclamations allowed to be proved did not proceed from either one of the parties engaged in the transaction, nor from any one acting in concert with either of them. They do not constitute a part of the res gestæ. Contemporaneous expressions or exclamations of the assailant or of his coadjutors, or of the deceased in cases of homicide, may be proved for the purpose of illustrating the character or quality of the act. *** We are aware of no case in which it was held that the cries or exclamations of persons in no way connected with the main fact were admissible as part of the res gestæ.” In the case before us, Andrew Patterson was connected with the main facts. It was impossible for the witnesses to tell who fired the shot, or caused the pistol to be fired. Patterson was a party to the occurrence, but apparently innocent of any wrongful purpose in his acts. Yet he was a party to it, and an exclamation instantly made by him should have been admitted as a part of the res gestæ.

The appellant complains that the court erred in failing to give an instruction on involuntary manslaughter. This offense is defined by Greenleaf, vol. 3, § 128: “Where one doing an unlawful act, not felonious nor tending to great bodily harm, or doing a lawful act without proper caution or requisite skill, undesignedly kills another.” We are of the opinion that under no phase of the proof was appellant guilty of involuntary manslaughter. He was handling a pistol-a deadly weapon-carelessly and recklessly, which tended to great bodily harm; and, even if his act had been lawful, it was without proper caution.

The instructions of the court, as given, covered the whole law of the case.

For the refusal of the court to allow the statement of Patterson, which constituted a part of the res gestæ, to be introduced as evidence, the case is reversed, and the cause remanded for further proceedings consistent herewith. [2]



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[April 27, 1904] -

Remanded For New Trial.

Judgement of the Laurel Circuit Court was reversed in a case of Daniel Selby against the Commonwealth, Judge Nunn writing, and the case remanded for a new trial. The appellant was indicted for the murder of Thomas Black. He was convicted of manslaughter and sentenced to confinement for the period of seven years and eight months in the penitentiary. The reversal is on the instructions of the trial Judge. [3]



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[June 7, 1904] -

Daniel Shelby was tried again for killing a man named Black at Pittsburg, Ky. The trial resulted in a hung jury, nine for acquittal and three for two years. He had been tried once heretofore and sentenced to seven years, but the case was reversed. [4]





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[February 14, 1905] -

ON TRIAL FOR MURDER.

LONDON, Ky., Feb. 13. -- The trial of Daniel Selby was begun here in the Circuit Court for the murder of Thomas Black at Pittsburg, nearly two years ago. He was tried and convicted for eight years, about a year ago.  The case was carried to the Court of Appeals and reversed.  At the last term of the court he had a second trial, which resulted in a hung jury. [5]

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[February 17, 1905] -

Dan Selby, for killing Thomas Black at Pittsburg, was given seven years. [6]




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[November 18, 1905] -

Selby vs. Commonwealth, Laurel; affirmed. [7]

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[1] "Accidentally Killed." The Courier Journal, Louisville, KY. September 19, 1903. Page 2. Newspapers.com.

[2] Selby v. Commonwealth, 80 S.W. 221 (1904).

[3] "Remanded for New Trial." The Courier Journal, Louisville, KY. April 27, 1904. Page 8. Newspapers.com.

[4] Excerpt from "Laurel County Criminal Cases." Lexington Leader, Lexington, KY. June 7, 1904. Page 7. Genealogybank.com.

[5] "On Trial For Murder." Lexington Herald, Lexington, KY. February 14, 1905. Page 2. Genealogybank.com.

[6] Excerpt from "In Neighboring Counties." Semi-Weekly Interior Journal, Stanford, KY. February 17, 1905. Page 1. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052020/1905-02-17/ed-1/seq-1/

[7] Excerpt from "Court of Appeals." The Courier Journal, Louisville, KY. November 18, 1905. Page 8. Newspapers.com.

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