Affirming.
Harlan Kidd was indicted in the Perry circuit court for the murder of his half-brother, Corbin Frazier. On the trial he was found guilty of voluntary manslaughter and his punishment fixed at ten years' imprisonment. He appeals.
There is no complaint of any error of the court in the admission or rejection of evidence, and on examining the record the court finds no error in this respect. The instructions are in the usual form and are not complained of. The only ground urged for reversal is that the verdict is palpably against the evidence.
The facts shown by the record are, in substance, these: The two brothers had a difficulty that morning at the ball park; very insulting words were used by Frazier, and finally he said something about having a pistol in his bosom. Kidd said it had no nerves in the handle, that it took a man to use it. Frazier was drinking and later during the day they had some more words, but Kidd avoid a difficulty. About an hour before the shooting Kidd was at home breaking his pistol and loading it. Not long after this, and about dark, Frazier and Frank Pippin were walking along the railroad; Frazier was talking. He said, with foul words, "If that man pesters me I will kill him." He mentioned no name, but Kidd, who was walking just behind them, spoke up and said: "What did you say?" Frazier wheeled around and grabbed at him and when he turned around the shooting started. Kidd shot five shots with his pistol. Frazier did not shoot any, but after he fell his pistol was lying near by him, loaded and cocked, but no shots fired. There was also proof that Kidd had often said that he was going to kill Frazier when he would get into a quarrel with him.
The jury were well warranted by the evidence in concluding that Kidd had gone home and loaded his pistol, and then had left home with his loaded pistol in *Page 155 his pocket, and without Frazier saying anything to him had brought on the difficulty. He come up behind Frazier and Pippin while they were talking. Frazier had said nothing to him. All he had to do was to hold his peace and let them go on their way, as he was behind them and they were going ahead. He did not do this and the promptness with which the shooting began warranted the jury in inferring that lie had loaded his pistol and was ready for the fray.
Judgment affirmed.