162 S.W.2d 538 | Ky. Ct. App. | 1942
Reversing.
On the trial of the appellant, James Chester Benson, for the murder of Martha Dell Vincent, a girl 19 years of age with whom he had been keeping company for more than a year, no instruction was given on self-defense or authorizing a conviction on any lower degree of the crime. The jury found him guilty of murder and fixed his punishment at death and from the judgment entered on that verdict this appeal is prosecuted.
Since the sole ground urged for reversal is error in failing to give the whole law of the case, there is no necessity to recite the evidence or comment thereon further than to say that it was wholly circumstantial, that there was strong evidence of a violent struggle at the time the deceased met her death, that no eyewitnesses testified and that the accused, although he testified and denied any knowledge of the killing, did not testify as to any facts indicating the manner in which the deceased met her death. *714
Beginning with Rutherford v. Com., 13 Bush 608, many cases dealing with the question before us have been decided in this court. From these cases, and particularly from the comparatively recent cases of McClerkin v. Com.,
The Commonwealth relies on the cases of Crenshaw v. Com., supra, and Davenport v. Com., supra, as sustaining the trial court's action in failing to give voluntary manslaughter and self-defense instructions but neither of those cases falls within the terms of the rule enunciated above. In the Davenport case [
Judgment reversed with directions to grant the appellant a new trial and for further proceedings consistent with this opinion. *715