196 Ky. 802 | Ky. Ct. App. | 1922
Opinion op the Court by
Reversing.
Thi-s appeal by Arthur Crum seeks a reversal of the judgment finding him guilty of. voluntary manislaughte-r and fixing his punishment at four years’ confinement in the state prison. On Thanksgiving Bay, 1921, Crum and the deceased, Hal-1, and two other men were -drinking whiskey along the railroad in Floyd connty. They were first seen above the water tank, when there was some disagreement between Crnm and Hall, and later they went under the water tank to shelter from a rain and Hall and Crnm had some controversy there during which Crum took a large pisto-l from his pocket and punched Hall .several times. During this controversy
Appellant Crum testified that he did not intend to shoot Hall and did not know he had shot him until after a crowd gathered and he, Crum,- had gotten up from the ground; that he and Hall were good friends; that the killing was the result of accident. Some of the witnesses for the Commonwealth testified to quite a different state of facts, which evidence was sufficient to have sustained a verdict of murder.
On this appeal appellant urges but one ground which is worthy of ¡serious ¡consideration, ¡and that is, the trial court failed to give the whole law of the case, especially an instruction upen the law ¡of accidental or unintentional killing and one upon involuntary manslaughter. The court gave five instructions. The first one related to wilful murder; the second to voluntary manslaughter; the third ¡directed the jury if it believed from the evidence beyond a reasonable doubt that ¡Crum was guilty of either murder or manslaughter, ¡but entertained a
- From the short statement of the substance of the evidence above, it is manifest that appellant relied chiefly upon the law of accidental killing or unintentional killing, or the negligent use of firearms as his defense, and the proof he introduced tends strongly to support one or more of these defenses. This being true, it was the plain duty of the trial court to have given an instruction upon the law of accidental and unintentional killing and involuntary manslaughter as well as one on the reckless use of firearms. As the other grounds for a reversal of the judgment are technical and of little importance, we refrain from passing upon them in the hope that the trial court may on another trial avoid any real errors, if any there may he among those relied upon.
Judgment reversed for proceedings consistent with this opinion.
Judgment reversed.