Affirming.
Clay Ford, who was jointly indicted with Claude Ford, Clarence Thompson, Otto Ford, and Fred Thompson, for the willful murder of Sam Hammer, was convicted of manslaughter and his punishment fixed at eight years' imprisonment. He appeals.
The facts about which there is practically no conflict in the evidence are these: On the first Monday in March, 1934, appellant and his codefendants, Claude Ford, Clarence Thompson, Otto Ford, Fred Thompson, and Sam Hammer were in Tompkinsville, and appellant, Otto Ford and Sam Hammer were more or less intoxicated. Some of the crowd attended a show, and all of them stayed in town until the show was over. After the show they gathered together and started home. All of them were more or less quarrelsome. Appellant and Hammer first got into a fight just above a stave mill. After fighting for a few minutes they were separated and went up the road about 100 yards further. After giving up their knives to Clarence Thompson they began fighting again. They were again separated, and later on Hammer was struck on the head with either a bottle or a blackjack. Hammer was carried to the home of Andrew Ford and died there a week later. At this point Clarence Thompson says that he left the crowd and went to hunt for Clay's cap. As he left he heard Claude tell Sam that he was not going to give him a chance to shoot him any more. He left Clay with Claude and Sam. While he was gone he heard a blow that sounded like the striking of a baseball with a baseball bat. At that time he was about 50 yards away. When he got back he found Sam lying in the road with his hands under his head. Fred and Claude were with him. Clay was up the road 20 or 25 yards. He asked them who hurt Sam, and they said they did not know. He asked Clay the next day who hurt Sam, and Clay said he didn't know; he wasn't there. The witness carried the bottle away and admitted to several persons that he hit the deceased. He claimed that he did this because some of them, but not Clay, stated that they would swear him out of it if he would admit that he hit the deceased. He further testified that appellant bought the bottle and *Page 140 was the last person he saw with it. According to Dr. Marrs, he found an injury on the side of the head of Hammer, and the deceased did not speak. There was nothing the matter with his ribs. Nearly every day he tried to get Hammer to talk, but he would not do it. Reed Ford, brother-in-law of deceased, testified that he was at the home of Andrew Ford and heard the deceased say he was going to die. Later on he heard Mary, his sister, ask the deceased, "Who did it?" and he said, "Clay and Claude did it." He did not make that known by words or signs, but spoke it. Afterward he examined Sam's wounds and found a place on the side of his head, and also found that his left ribs were pushed up and his right ribs pushed down, and there was a welt on the groin. Ray Ford, a third cousin of Sam Hammer, testified that on Friday night he was present and heard Sam say that Clay Ford and Claude Ford killed him, and he put his hand on his head. Mary Jobe, a sister of Sam Hammer, testified that she was with him from about 9 o'clock on Tuesday morning until just before he died. During that time he could talk, and did talk. Wednesday he called her name and asked for water. On Thursday he called for water and milk. He could talk better on Friday than on Thursday. He said he was going to die and that they all killed him. "He said that they had all killed him — said Claude and Clay Ford and Ott Ford and Clarence Thompson and Fred Thompson." Later on, in answer to the question, "Who killed you?" he said, "Claude Ford, Clarence Thompson, Fred Thompson, and Clay Ford killed him."
On the other hand, appellant testified as follows: He and Sam were friends and there had never been any trouble between them. Going home they were fussing and quarreling. After fighting for a while they decided to give up their knives and did give them up to Clarence Thompson. After giving up their knives he got Sam down and some one told them to stop and they stopped. They then went up the road further and got into another fight. They both fell into a ditch and Sam fell on top of him. Fred Thompson, Clarence Thompson, and Claude Ford were along there. They told him and Sam to quit. After that fight they stopped. Fred had Sam and Clarence had hold of him. Then Fred and Clarence changed and Clarence had Sam and Fred had him. They then decided to go home. He had lost his cap and told Claude to go and get it. Claude went *Page 141 off down the road looking for the cap and Clarence and Sam went up the road. Fred still had hold of him. After that Sam got hit and Clarence came down and said he had hit Sam and to come up there. He went down the road past where Sam was and sat down, and Fred went back where Sam was. He did not stop and see whether or not Sam was hurt because they had been fighting and he thought Sam was still mad and Fred told him not to stop there. His eye was bruised in the fight with Sam. His arm was injured — white swelling. He never struck Sam with anything that injured him on the side of the head or elsewhere. After describing the various fights between appellant and Sam, Fred Thompson testified that he told Clarence to take Sam, and he himself took Clay, and they went on up the road. He "hollered" to Claude and told him to come up there. Before Claude got there Clarence came running down the road and said for them to come up there and see about Sam; that he believed he had killed him with a quart bottle. When they got up there Sam was lying on a bank three feet high. Clay wanted to stop, but he would not let him. Claude went after Andrew Ford. Lola Blythe, appellant's aunt, testified that she was over at Todd Hammer's on Friday morning before Sam died. While there she heard Reed Ford ask Sam if Clay Ford hit him and Sam shook his head. He then asked Sam if Clarence Thompson hit him and Sam began gritting his teeth. Ransey Thompson testified that on Friday morning he had a conversation with Mrs. Mary Jobe in which Mrs. Jobe said that Sam could not talk.
It will be seen from the foregoing resume of the evidence that on the one hand we have the positive evidence of appellant and Fred Thompson that appellant did not throw the bottle, coupled with the fact that Clarence Thompson stated to several persons that he himself was the one who struck the deceased, together with his explanation that the others threatened to railroad him unless he admitted the crime, and stated that they would swear him out of it if he did admit it. On the other hand we have the uncontradicted evidence that on their way home appellant and deceased had several fights. At one time appellant was on top of the deceased and at another time deceased was on top of appellant. Though they had been friends before that *Page 142 time they were far from being friends that evening. Not only so, but appellant purchased the bottle found at the place of the homicide and was the last person seen with the bottle. In addition to all this the deceased made a dying declaration to the effect that Claude and Clay killed him. It is apparent, therefore, that the evidence was sufficient not only to take the case to the jury but to sustain the verdict.
We find no error in the record prejudicial to appellant's substantial rights.
Judgment affirmed.