176 Ky. 686 | Ky. Ct. App. | 1917
Opinion of the Court by
Affirming.
The defendant, William B'reckenridge, was convicted of manslaughter and given an indeterminate sentence in the penitentiary of from 5 to 15 years. He appeals.
Briefly stated, the facts are as follows:
The homicide occurred on the Louisville & Nashville railroad, near Marshall station, about 8 miles from Maysville, in the early part of May, 1915. It appears that several negroes were engaged- in shooting craps. Among those present were Richard Robinson, Russell Turner, Adrial Jones, and the defendant. According to the testimony for the Commonwealth, Robinson and Turner had. a difficulty and while they were fighting they each fell to the ground. At this point the defendant started to leave, but after going a short distance, returned to the scene of the difficulty. Thereupon, Bennett, the chief witness for the Commonwealth, says that he heard a pistol shot and on looking behind him saw the defendant and the deceased, Adrial Jones, with their pistols pointed at each other. The defendant then fired again and these were the only two shots that were fired. When the body of the deceased was discovered some time later, it was found that he had been shot twice with a 38-caliber pistol, once above the breast bone and once just below the shoulder, and from these wounds death resulted. When the defendant was arrested that night,
According to the defendant’s evidence, the negroes came to his house for the purpose of getting a light. After some discussion and delay, he furnished them a torch. He did not take part in the crap game, but was a mere onlooker. The first difficulty that occurred was between Turner and Robinson over a pair of shoes. This difficulty was settled. Later on Jones and Robinson began a difficulty over 50 cents. Finally Turner took part in the saíne difficulty. Then Jones, Robinson and Turner all clinched and fell in a heap. Jones was the first man to get up. He then drew his pistol and.shot at Robinson. At this point, someone said, “Adrial, don’t you do that.” Thereupon, Jones turned to the defendant, who was moving away, and said, “Breck, what have you got to do with it?” The defendant' replied, “I haven’t a God’s thing to do with it.” The deceased immediately pointed his pistol at the defendant and snapped it. The defendant then turned and shot the deceased.
“If the jury believe from the evidence beyond a reasonable doubt that the defendant, William Breckenridge, in this county on the...........................day of..................:............................. 1915, and before the finding of this indictment, willfully and feloniously and not in. self-defense as defined in Instruction No. 3; shot and killed Adrial Jones, with a pistol loaded with powder and ball, or other hard substance, then they will find the defendant guilty: Guilty of Wilful Murder, if the shooting was done by defendant with malice aforethought; Guilty of Voluntary-Manslaughter,
The foregoing instruction is complained of because the words, “guilty of wilful murder” and .“guilty of voluntary manslaughter” are underscored. It is argued that the instruction is prejudicial because it calls the attention of the jury to the particular circumstances under which they could find the defendant guilty either of murder or manslaughter, whereas in dealing with the question of self-defense, the words “acquit the defendant on the grounds of self-defense” in the third instruction, were not underscored. It is evident, we think, that the words in question were underscored, not for the purpose of emphasizing the necessity of defendant’s conviction, but for the purpose of emphasizing the distinction between wilful murder and voluntary ■ manslaughter, and we have no doubt, were so understood by the jury. While it is the better practice not to underscore any part of the instructions, we conclude that the underscoring of the words in question was not .sufficiently prejudicial to the substantial rights of the defendant to authorize a reversal.
Judgment affirmed.