86 Ky. 663 | Ky. Ct. App. | 1888
delivered the opinion of the court.
The trial of the appellant in the Whitley Circuit Court for willfully and maliciously shooting and wounding- Mase Owsley, with the intent to kill him, Owsley, resulted in the conviction of the appellant of the charge, and his punishment was fixed at confinement in the State Penitentiary for the term of one-year. His motion for a new trial having been overruled, he has appealed to this court. Two errors are assigned for a reversal of the case: First, the court erred in refusing to properly instruct the jury upon the subject of self-defense; second, misconduct of the Commonwealth’s Attorney, consisting in making a statement of fact, which was not in evidence, in the-presence of the jury, and which was prejudicial to-the rights of the appellant. These grounds will be-noticed in their order.
The Commonwealth introduced Greo. Berry as a witness. - He testified, that a short while before the shooting, he and appellant went to Mase Owsley’s lunch-room to get a lunch; that Owsley refused to let them have-the lunch; whereupon, they went to Taylor’s saloon, which was about the distance of a hundred yards from Owsley’s lunch-room; that while they were in Taylor’s saloon Owsley came in and cursed and abused the-crowd; that he had a pistol in his hand, and pointed it towards the appellant, cursing him at the same time y that the appellant, while Owsley was pointing the pistol towards him and cursing him, drew his pistol and fired it at Owsley, the ball striking him in the breast; that Owsley then left the room, and as he went out at the door he fired two shots back into the room. That Ows
It is contended by the Commonwealth that instruction No. 1, given at the instance of the Commonwealth, gave the appellant the benefit of the law of self-defense. The jury were told by that instruction that if the appellant willfully and maliciously, “and not in his. necessary, or to him reasonably apparent necessary, self-defense,” shot and wounded Owsley, etc., then they must find him guilty. The court refused to give any other instruction on the law of self-defense. This instruction left the jury to determine what, in law, constituted necessary, or “ reasonably apparent necessary,” self-defense; whereas, the appellant was entitled to an instruction defining the law of self-defense, and the-court erred in not giving such an instruction. For this error the case must be reversed. The definition of self-defense has been so often given by this court, it is not deemed necessary to again give it for the guidance of the lower court upon another trial.
When Geo. Berry’s evidence was concluded, and while the lower court was, with the view of fixing his fees as a witness for the Commonwealth, interro
For the error of the lower court in refusing to instruct the jury upon the subject of self-defense, the case is reversed, with directions to grant the appellant a new trial, and for further proceedings consistent with this opinion.