95 Ky. 29 | Ky. Ct. App. | 1893
delivered the opinion of the court.
As the case must go hack for another trial, no facts, will be noticed in the opinion further than is necessary to make it intelligible. There was a Sunday-school meeting held at Oak Grove meeting-house, and during the meeting Watson and Gastineau fired their pistols within a short distance of the meeting-house, Avhich created a disturbance. The minister requested the appellant Doolin, avIio was a constable in good standing, to arrest the persons creating the disturbance; and in obedience'to the request he, together with Cope, AAdio Avas summoned to assist, started out to make the arrest. Apprehending some trouble, they procured a rifle gun, and finally they OA’ertook Watson and Gastineau, and ordered them under arrest. Gastineau obeyed, but Watson moA^ed on, not obeying, and he finally began to run, and the appellants, pursuing, Doolin being armed AAdtli the rifle gun and Cope Avitli a stick. The \Aritnesses for the Commonwealth say that Cope said to Doolin, “ Shoot him, shoot him, I say, and don’t let him get aAvay,” and immediately Doolin fired the gun, and Watson fell Avounded, from Avhich he died.
The evidence for the appellants is, that Cope did not say “ shoot him,” etc., but that AAdiile they Avere pursuing Watson in order to arrest him, and telling him that they did not Avish to hurt him, but only to arrest him, he said that if they folloAved him any further he would shoot them, and threAv his pistol over his shoulder in the direction of them and snapped it at them; and that believing the pistol was loaded, and that Watson intended to kill them, Doolin fired in their necessary self-defense. The court instructed the jury that the appellants had the right to.
It seems to us that this instruction is erroneous, for its meaning is that if Doolin in the pursuit of Watson gave him reasonable ground to believe that he, Doolin, intended to take his life or to do him great bodily harm, and he tried to shoot Doolin in order to prevent the apprehended danger to himself, which might not have existed in fact, then Doolin could not avail himself of Watson’s threatening conduct toward him as a ground of self-defense. If Watson had shot Doolin, and was on trial for the shooting, the circumstances indicated in the instruction would avail him as self-defense. Under the plea of self-defense it is not necessary that the apprehended danger should exist
Eor the error indicated the judgment is reversed and the case is remanded for a new trial.