119 Ky. 664 | Ky. Ct. App. | 1901
Opinion of the court by
Affirming.
It appears from the testimony of Bryant Holt, a witness for tlie Commonwealth, that he was going along the public highway, a short distance from his mother’s house when he met the appellant and another man. The other party was riding horseback, while the appellant was walking. When they met in the road the appellant threw his pistol down into his face and said: “Throw up your hands or I will kill you.” He did not take his hands out of his pockets, and appellant asked him what lie meant by having them in his
In explanation of the occurrence detailed by Holt, wherein he was commanded to hold up his hands, appellant was permitted to testify that he was acting under an appointment by a United States deputy marshal, and that he and his companion were using the deputy marshal’s horse, and that he was using the pistol of that officer; that they had gone to Casey county to arrest a moonshiner by the name of Boy; that before he met Holt in the road they were strangers, neA^er haAdng met before, and when they were in seAreral yards of each other. Holt put his hand behind him and at once brought it back to his 'front pocket; that he thought he had something in his hand, and Adíen he (Holt) got up to him he looked at him “straight and hard,” then the defendant said
In Greenleaf on Evidence, 15th edition, volume 1, section 108, in speaking on the subject of res gestae, the author says: “The affairs of men consist of a complication of circumstances so intimately interwoven as to be hardly separable from each other. Each owes its birth to some preceding circumstance, and, in its turn, becomes the prolific parent of others; and each, during its existence, has its inseparable attributes, and its kindred facts, materially affecting its character1, and essential to be known in order to a right understanding of its nature. These surrounding circumstances, constituting parts of the res gestae, may always be shown to the jury, along with the principal fact; and their admissibility is determined by the judge, according to the degree of their relation to that fact, and the exercise of his sound discretion, it being extremely difficult, if not impossible, to bring this class of cases within the limits of a more particular description.”
It is the theory of the Commonwealth that the appellant did an unlawful act in drawing the pistol upon Holt on the public highway; that after the lapse of five minutes, without
Instruction No. 1, was on the subject of murder; No. 2 on manslaughter. They were given in the usual form, but did not contain the words “not in his necessary self-defense,” and it is therefore, insisted that they were misleading to the jury, although a proper instruction was given on self-defense. This court has repeatedly held that all the instimctions given to the jury must be read together. To do this the question of self-defense was properly and sufficiently submitted to the jury. In instruction No. 2, the court told the jury it should find the accused guilty of manslaughter, if the act was done in sudden affray, or in sudden heat and passion and without previous malice. It is insisted that the court should not have used the words sudden affray, because there was no evidence upon which to base it. The Commonwealth claims that appellant fired four shots at Holt, and the testimony is to the effect that Holt fired one at the appellant. The evidence tends to show that Holt was male
Webster defines affray to be “the act of suddenly disturbing any one; an assault or attack. . . . The fighting of two or more persons in a public place, to the terror of others.” He also says: "A-fighting in private is not, in a legal sense, an affray.” He also gives the synonym: “Quarrel; brawl; scuffle; encounter; fight; contest; feud; tumult; disturbance.”
The word affray, as used in the manslaughter instruction, does not mean that two persons must engage in a fight on a public road, or be guilty of the common law offense of an affray. The testimony of appellant, and also of the Commonwealth, tends to show that there was an affray. If A halts B on a public highway and attempts to draw a gun on him, and B fires four shots at him, after which A fires one at him, it certainly would constitute an affray. If it did .not, it would be difficult to imagine an occurrence which could be called an affray.
The testimony of appellant was abundant upon that question to justify the submission of it, and if it had not been done his counsel would doubtless have urged in an unanswerable argument that the court had erred to his prejudice in not giving such an instruction. The jury was the judge as to the apparent necessity for the accused to fire the fatal shot, and having found against him on that question we will not disturb the verdict.
The judgment is affirmed.