| Ky. Ct. App. | Jan 13, 1897
delivered the opinion oe the court:
The appellant, James Crockett was indicted jointly with his brother, John Crockett, Charles Helm and Josiah Salms, for the mnrder of Dan Kidd, it being charged in the indictment that the defendants conspired and confederated together for the purpose of committing said murder, which was effected by James and John Crockett shooting and killing Kidd.
It appears from the evidence that the killing occurred at a picnic near Pellyton, in Adair county, near the Casey county line. There had been some words between John Crockett and the deceased, and, without
Upon the question of whether Kidd advanced toward John Crockett there is considerable contradiction in the testimony, the evidence for the Commonwalth stating that he staggered away from his enemy, and that ■Crockett, breaking away from the man who was holding him, pursued Kidd, following a path on the other .side of a log from that on which Kidd had fallen.
On the side of the defense there was evidence to ■ show that Kidd advanced upon Crockett with an open knife in his hand, and that Crockett fired over his head ■the first time, and afterward fired four shots in rapid succession directly at Kidd. Just about the time that .John Crockett fired his last shot James Crockett came up behind Kidd and fired at him twice. The evidence upon the subject of the wouhds in Kidd’s body indicates that several of them, were fired into his back and ■side. He died almost instantly, and the four defendants, who were jointly indicted, then left the picnic, .after a challenge from the Crocketts addressed to the crowd in general or any one who wished to take up the .difficulty.
The appellant was indicted at the September term, 1895. At the May term, 1896, he applied for a continuance upon the ground of the absence of four witnesses, and on account of the absence of one of his attorneys. The attorney for the Commonwealth agreed that the affidavit as to three of the witnesses might be read as their depositions; as to'the witness, Oscar Evans, as to whom the affidavit was not permitted to be read as a deposition, it was stated that he would state that, a short time before Dan Kidd was killed, Ed Kidd, a son of Dan Kidd, came to the witness, got a pistol, and, during the difficulty between Dan Kidd and the Crocketts, shot at John Crockett. The lower court, in the exercise of its discretion, ruled that due-diligence had not been used to obtain the deposition of Evans, and we are not disposed to disturb his ruling.
It is urged on behalf of appellant that an instruction upon the subject of conspiracy was not justified by the evidence. There was evidence competent to go to the jury conducing to show the existence of a conspiracy. We are of opinion that no error to the prejudice of the substantial rights of appellant was committed in giving. this instruction.
The defense mainly relied on was that the shooting by this appellant was done in the defense of his brother John; and upon this the court instructed the jury that if at the time appellant did the shooting charged, aiding and abetting John Crockett in doing said shooting, he, the said James Crockett, believed, and had reasonable grounds to believe, that his co-defendant, John Crockett, was then in immediate danger of losing his life or suffering great bodily harm at the hands of said Kidd, and that the defendant, James Crockett, did said shooting, aiding, abetting or assisting solely to prevent or avert said danger or apparent danger of his said brother, John'Crockett, and, in doing so, used no more force than appeared to him at the time to be reasonably necessary for the purpose, they will acquit defendant upon the ground of self-defense, unless they shall
The objection to this instruction is that the qualification should have been omitted which instructed the jury that if John Crockett sought and brought on the difficulty, by drawing a pistol on the deceased, the defendant could not rely upon the plea of self-defense. The ground of this objection is that there had been two or three previous difficulties between John Crockett and the deceased, in which insulting and abusive language had been used to John Crockett, accompanied by threats, and that these facts rendered the qualification unnecessary and improper. We do not think so. The difficulty in which the killing occurred was the one for the consideration of the jury, and, in the conflict of testimony, it was for them to decide who brought on the difficulty.
There remains but one important objection to the instructions, and that is to the instruction upon voluntary manslaughter.
In instruction No. á the jury were told that if the defendant, “in a sudden affray, or in sudden heat and
The objection is to the words “upon some provocation which was reasonably calculated to excite his passions beyond the power of self-control.” This instruction is not open to the objection which has been heretofore made by this court to the use of the words “legal provocation” and “considerable provocation.” The true test is “whether the law deems the provocation calculated to excite the passions beyond control; if so, it reduces the offense from murder to manslaughter.” (Lewis v. Commonwealth, 93 Ky., 242; Bishop’s Criminal Law, p. 711.)
In fact in this case the language is very similar to the language suggested in the case of Lewis v. Commonwealth, supra-, where the court said: “It would have been better to have told them that the provocation must be such as was ordinarily calculated to excite the passions beyond control.”
In our opinion the instructions given properly stated
Wherefore, the judgment is affirmed.