140 Ky. 550 | Ky. Ct. App. | 1910
Opinion op the Court by
Appellee was indicted by a grand jury in Breathitt county charged with the murder of Harlan McIntosh by shooting Mm with a pistol. After the Commonwealth introduced its testimony, the court, upon the motion of appellee, gave the jury a peremptory instruction in bis behalf, which was complied with by the jury, and the Commonwealth has appealed to have the law of the case certified.
The only question presented is whether or not the lower court erred in sustaining appellee’s motion for the peremptory instruction, and this depends upon the fact as to whether or not there was any evidence introduced showing appellee’s guilt. We have examined the evidence with care, and find it is to the effect that appellee killed Harlan McIntosh on Turkey Creek in Breathitt county, in.May, 1909, by shooting him with a pistol; that the killing occurred about one hundred yards from the home of Luther Little about three or four o’clock in the afternoon. The Commonwealth introduced the wife of Luther Little and she testified, in substance, that appellee and Harlan McIntosh came to their house about three
The facts and circumstances connected with the killing were imperfectly adduced and leave the matter clouded with mystery. They do not, however, show a clear case of self-defense.
In the case of Commonwealth v. Murphy, 109 S. W. 353, this court said:
Under this authority and the cases therein cited, the lower court erred in giving the peremptory instruction. This, however, does not affect the accused, as the verdict of acquittal under the instructions of the court, operated to free him from the accusation and to prevent a subsequent prosecution for the offense.
This opinion is ordered certified to the lower court as the law of the case.