93 Ky. 302 | Ky. Ct. App. | 1892
delivered the opinion of the court.
The appellant and his father had had a lawsuit with Daniel C. Baker, in which some real estate belonging to the appellant and John W. Baker was sold, and purchased by Daniel C. Baker. The circuit court held that Daniel C. Baker was entitled to said land and put him in possession of it. This court reversed that decision, holding that the appellant and his father were -entitled to the land. Thereupon, upon the return of the cause to the circuit court, that court’ caused, by proper writ, the appellant to be put into the possession of said land, except the house and about two acres and a-half of land, which the app>ellant and Daniel C. Baker agreed that the latter might hold until the end of that year as tenant. The evidence tends to show that after the year had expired, Daniel C. Baker and brother concluded to regain and hold by force the land that the appellant had been put into the possession of. Daniel C. Baker’s brother, "Wm. Baker, knowing that said land had been restored to the possession of the appellant by order o.f court, joined with him to enter upon said land and take forcible possession of it, and fence it up. They induced others to join them in the enterprise, and they did, pursuant to said purpose, enter upon said land and commenced fencing it up. The crowrl thus engaged, or the most of them, Avent upon said land armed with pistols, guns and rifles. The evidence tends to show that they purposed to take forcible possession of the appellant’s land and to kill the appellant and the tenant of the appellant if they attempted to resist their entry. This condition, as appears from the record, caused the appellant and his tenant to arm themselves to protect themselves against what appeared
The lower court’s instruction to the jury upon the subject of self-defense fails to tell the jury that'appellant, being on his own premises, was not bound to retreat, but had the right to stand his. ground and use such force as was reasonably necessary to repel the forcible entry upon his premises. The rule upon that subject, as applicable to this case, is that a person is not hound to retreat when upon his own premises, but may stand his ground and defend his person or property; but he is not justified to take the life of a mere trespasser, or do him bodily harm to prevent the mere trespass. But' if the trespass is committed with the intention of killing or doing the owner of the property great bodily harm, if he resists the tres
The judgment is reversed, and the case is remanded with directions to grant a new trial and for further proceedings consistent with this opinion.
