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“Look at the gun,” Mr. Luke retorted. “A suicide would stretch the imagination beyond credibility.” And a murder would have required someone “by coincidence” to have sneaked up and shot him while he was hunting — alert for movements and sounds. “There is no other reasonable hypothesis to explain it other than he was shot by the defendant.”
Following Mr. Luke’s argument, Judge Foley pronounced his finding in the case.
“The reckless discharge of a firearm, is not murder or manslaughter - the crime is the same if the victim died or is merely wounded. The dif- j ference in the case is the emotions ’ because Ricky Doyle Gray is deceased.
“It is the court’s job to sift through the facts presented - to determine if the Commonwealth has proved its case . . . beyond a reasonable doubt -- not beyond all imaginable doubt. This is a criminal case, not a civil case ... the burden of proof is hard ... the Commonwealth’s burden ... deals with criminal intent. . . intent can be implied from the act.”
An analogy to recklessness in the discharge of a firearm, Judge Foley said, can be made to reckless driving; “a total and callous disregard for the consequences of actions.”
Judge Foley said that he saw no great inconsistencies in any of the testimony presented. “The question is were the circumstances reckless?” and whether a deer was involved. “That’s the key to the Case. Mr. Price testified to the presence of a deer.”
That’s why, the judge explained, that he looked through Mr. Selvage’s scope himself; judging the distance to a pine tree near the courthouse, which was visible through the window.
“There is no question that the maximum distance was 200 feet - less than 100 yards ... the deceased was dressed in blue ... if (Mr. Doyle) had been in the line of the scope at any time, he would have been easily visible hyo.”
Although it is generally necessary to determine whether there is anyone else in the area, Judge Foley noted that Mr. Selvage had no reason to believe that there was anyone near where he was shooting. Prior to meeting Mr. Price, he believed that and Mr. Shafer were the only hunters on the mountain; Mr. Price had told him the rest of his party had already returned to their truck.
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