157 Ky. 478 | Ky. Ct. App. | 1914
Opinion op the Court by
Reversing.
The appellant, Emma Eversole, was tried in the court below under an indictment charging her with the murder of her husband, Mack Eversole, but by the verdict of the jury was found guilty of voluntary manslaughter, upon which judgment was duly entered fixing her punishment at confinement in the penitentiary not less than two nor more than twenty-one years; and from that judgment she has appealed.
She asks a reversal of the judgment on the following grounds: First, that the indictment was defective; second, that the circuit court erred in admitting as evidence the alleged dying declaration made by the deceased shortly after he was wounded and before his death; third, that the court erred in permitting evidence on rebuttal attacking appellant’s reputation; fourth, that the court erred in instructing the jury; particularly in failing to instruct them as to her right to resist her attempted eviction from her residence by the deceased.
Before undertaking consideration of the grounds urged for a reversal, we deem it necessary to set forth the material facts of the homicide. We gather from the bill of evidence that appellant became the wife of the deceased, Mack Eversole, November 27, 1912. Each of the parties had been previously married and divorced. Appellant had become the mother of three children while
What has been related as to the occurrences in the house was furnished in the main by the testimony of appellant, in much of which she was corroborated by her son, Mary Williams, an old colored woman, and the daughter of the latter. The boy and Mary Williams heard a large part of what was said by Eversole in ordering his wife to leave the premises, and the threat to Mil her; and several other witnesses saw him leave the
On the other hand, numerous witnesses were introduced by the Commonwealth who saw appellant and her husband when they reached the porch immediately after the shooting, where they were apparently scuffling over the pistol. One of these witnesses testified that on the morning of the shooting, or the day before, he had a conversation with appellant in which she made complaint of the conduct of Eversole and his divorced wife and said in substance, that if they came about her, or didn’t stop it, she would make it hot for them; and another witness testified, in substance, to a similar declaration previously made by appellant.
Appellant’s complaint of the indictment cannot be sustained. It is in the usual form, its averments embracing every element necessary to constitute the crime of murder.
Appellant’s complaint of the admission of the dying declaration of the deceased is equally groundless. The statement in question was, in substance, as follows: That he went into the house and sat down on the trunk by the fire-place; that he didn’t know his wife was mad, and when she came into the room she closed the door as she passed through it, walked to where he was sitting on the trunk near the other door, closed that also and immediately began to shoot at him; that he had not done a thing to her and did not know she was mad until she jabbed the pistol against him and fired; that she fired •five shots and he thought they were all in him, but that the first shot killed him. Deceased lived an hour and a half or two hours after he was shot, and we think it fairly apparent from the evidence that at the time he made the foregoing statements as to what occurred at the time of the shooting, he had no hope of recovery and believed his death imminent. At the time of making them he said to several witnesses whose testimony appears in the record, that he was killed. To his father he said it was the last time he would ever come to see him. To Joe Coombs he said: “Brother Joe, I am killed.” Coombs said to him: “Maybe you.are not,” to which deceased replied: “I know I am killed.” Coombs then examined the wound in the abdomen, which deceased could himself see, and said to deceased: “I believe you
We find no merit in the appellant’s third complaint. The evidence introduced by the Commonwealth in rebuttal to impeach appellant as a witness would not have been admissible as evidence in chief; but when appellant became a witness and testified in her own behalf, which she did not do until after the Commonwealth had concluded its evidence in chief, it was then competent for the Commonwealth, by the introduction of additional evidence, by way of rebuttal, to attack her general reputation for untruthfulness or immorality. Indeed, the introduction of such evidence is expressly allowed by section 597, Civil Code, equally applicable to criminal prosecutions, which provides: “The witness may be impeached by the party against whom he is produced, by contradictory evidence, by showing that he has made statements different from his present testimony, or by evidence that his general reputation for untruthfulness or immorality renders him unworthy of belief; but not by evidence of particular wrongful acts, except that it may be shown by the examination of a witness or record of
Appellant’s fourth and final contention must be overruled in part and sustained in part. Insofar as it complains of the instructions that were given by the trial court it is without merit; for by them the jury were correctly told in what state of case they would be authorized to find the appellant guilty of murder or voluntary manslaughter, and what punishment they might inflict for the first named crime; also what would justify the application of the law of self-defense as to one of appellant’s grounds of defense; while in and through them, separately and as a whole, ran the admonition to the jury to allow the appellant the benefit of every reasonable doubt in the matter of determining her guilt or innocence, or, if they found her guilty, in determining the decree of her offense. But in view of the evidence furnished by appellant’s testimony and that of several of her witnesses, that deceased ordered her to at once leave the house, threatened to kill her if she did not do so, and, upon her refusing to go, immediately assaulted and struck her with the gun as if to forcibly compel her to leave the house or to kill her, the court should have given the following additional instruction:
The jury are further instructed that appellant had the right, equally with her husband, Mack Eversole, to live and remain in the house occupied by them as a home, and the husband had no right to foricbly evict her therefrom; and if they believe from the evidence that the husband ordered defendant to immediately leave the house, and that upon her refusal to leave it, if she did so refuse, he attempted to drive her from the house by threatening to kill her and forcibly assaulting and striking her with a gun, she had the right to resist and prevent such assault or attempted ejection, by the use of such force, and no more, as was necessary or appeared
“"Whatever may have been the rule formerly, the authority on the part of the husband to even moderately chastise his wife is now expressly repudiated, and all such punishment is regarded as an assault and battery for which he must answer criminally. The husband has no right to compel his wife by force to obey his wishes. Her person is as sacred as that of her husband, and the protection offered by law to the one should not be denied to the other; but he may defend himself against her and may restrain her from acts of violence towards himself or towards others. The mother may interfere by force, if necessary, to do so, to protect her child from cruel treatment or wanton chastisement or abuse by either the stepfather or father, but her right to interfere depends upon the fact whether the father has exceeded the just limits of parental authority in the extent and char- • acter of the chastisement which he is administering to the child. If he has, the wife, by interfering for the protection of the child, does not become an aggressor, and should the husband repel such interference by an assault upon the wife, he is in the wrong and must be regarded as an assailant and treated as a wrong-doer. If, however, the chastisement of the child does not exceed the just limit of parental authority, the interference of the mother would be unwarranted and the father is fully justified in using all reasonable and necessary fore© to protect himself and restrain and prevent her interference.” Roberson’s Criminal Law, Vol. 2, Sec. 540; Carpenter v. Commonwealth, 92 Ky., 452.
The wife is neither the husband’s mistress nor slave, nor can she forcibly be compelled by him to submit to
For the reasons indicated the judgment is reversed for a new trial consistent with the opinion.