130 Ky. 513 | Ky. Ct. App. | 1908
Opinion of the Court by
Reversing.
The two principal questions in this case are •. First, whether there was sufficient evidence to establish the existence of a conspiracy between Allen Gambrell and his codefendants to take the life of John Gambrell, and whether, in pursuance of such conspiracy, and while it existed, his life was taken; and, second, does the existence of a conspiracy, and a homicide as the result of it, operate to deprive the accused of the right to rely upon the plea of self-defense?
The appellant and his brothers, Silas, Rice, Tom, and Nelson, were jointly indicted, charged with the murder of John Gambrell. The indictment contains several counts, in one of them accusing all of them of unlawfully, maliciously, and wilfully confederating and conspiring together to kill John Gambrell, and of committing the crime in pursuance.of the conspiracy and while it existed. In others, it charges each of them individually with the murder, and the others with aiding, abetting, and assisting in its commission. The appellant was tried separately, and his punishment fixed by the jury at imprisonment for life in the State penitentiary. He asks a reversal of the judgment upon this verdict: First, because of error of the court in admitting incompetent evidence against him, and in rejecting competent evidence offered in his
John Gambrell was killed in July, 1907. About a month previous to this, Garrett Gambrell, a brother of John, shot Green Gambrell, a brother of appellant, and from the effects of the wound received he died some days afterwards. The difficulty between Green and Garrett was the cause and beginning of the hostility between Allen Gambrell and his brothers and friends, upon the one side, and John Gambrell and his brothers and friends, upon the other. Thp record does not disclose any previous ill feeling between the parties. Soon after Green Gambrell was shot, Allen Gambrell procured the issual of a warrant against John Gambrell and his brothers Garrett and Hedger, charging them with the shooting of Green Gambrell, and this aggravated the ill feeling between the families. Shortly after this, and while Green Gambrell was lying wounded at the house of Elijah Hubbard near where he was shot, Allen and Ms brothers were almost constantly in attendance upon him, and during the time several, if not- all, of them were armed with pistols. John Gambrell occasionally passed along the road near by the house of Hubbard, and on one occasion, while all of the accused were at Hubbard’s, Nelson and Rice asked Silas and Allen if they were going with them that night to waylay the boys (meaning John Gambrell and Ms brothers), and if so to get ready; but for some reason th^y did no.t make
The evidence for the Commonwealth tended to show that Allen Gambrell and his four brothers, the majority, if not all of them, being armed with pistols, were present at the schoolhouse, that they knew John Gambrell would be there, and that they assembled for the purpose of engaging him in a difficulty and killing him. That more than one of them shot him is made plain by the evidence of the doctor, who examined the four pistol wounds inflicted upon his person, and testified that one of them was made with a 45 pistol, two with a 38 pistol, and one with a 32 pistol. Two of these balls entered the front of his body, one of them entered his back, and another struck him in the hand o.r arm. The difficulty commenced almost immediately after John Gambrell alighted from his horse and came up to the house. ' He there met Allen Gambrell. A few words passed between them. Allen threw a rock at John- and drew his pistol, but was prevented from doing further violence
There are in the record a number of circumstances pointing to the conclusion that Allen Gambrell and his brothers entertained for John Gambrell a feeling of deadly hostility. These circumstances, taken in connection with the facts heretofore mentioned, were well calculated to convince the jury that there was a conspiracy and agreement between these brothers to take the life of John Gambrell, and that, in pursuance
With the evidence in this condition, the court, in
It will thus be seen that the jury were instructed that Allen Gambrell’s plea of self-defense would not
The reason upon which the doctrine of self-defense rests may be generally stated to he that' the person depending upon it to excuse or justify his conduct must himself at the time of the homicide be free from blame, without fault, and not the aggressor. Every person has the natural as well as legal right to protect his own life, although in so doing it becomes necessary to take the life of anothér, and the right to defend his person against unlawful violence and use such force as appears to him in the exercise of a reasonable judgment to be necessary to protect himself from impending danger; but the fact that it was necessary at the particular moment to' take the life of his adversary will not excuse or justify him, if he himself was the wrongdoer or the aggravating cause of the difficulty, or if his own conduct and actions brought about the condition that made it necessary to resort to this method for protection. One who provokes a difficulty, with the purpose of killing his enemy, and carries his plan into execution by killing him, cannot shield himself from the consequences of his wrong upon the pretense that it was necessary that he should take the life of his adversary in self-defense. These general statements are fully supported
But the instruction goes further than is here indicated, and deprived the accused of his right to rely upon the plea of self-defense if the deceased was killed pursuant to the conspiracy and while it existed, although no one of the conspirators may have sought him out for the purpose of killing him, or have provoked the difficulty that resulted in his death, or have first attacked him. If Allen Gambrell and his brothers, in pursuance of the conspiracy, and while it existed, went to the school-house for the purpose of killing John Gambrell, or if either one of them first provoked the difficulty with him, or first attacked him, then neither of them could rely on the plea of self-defense. On the other hand, although they had previously formed a conspiracy to kill John Gambrell,
With the exception indicated, and a few minor errors, the instructions clearly presented the law applicable to the various states of case presented by the evidence. It is true that they are quite lengthy, but the facts of the case are so complicated that it was necessáry that several phases of the law of homicide
“1. (a) The words ‘willful’ and ‘willfully,’ as used in these instructions, means intentional; not accidental or voluntary, (b) The word ‘feloniously,’ as used in these instructions, means proceeding from an evil heart or purpose; done with the deliberate intention of committing a crime., (c) The phrase ‘with malice aforethought,’ as used in these instructions, means a predetermination to do the act of killing without legal exceuse; and it is immaterial at what time before the killing such a determination was formed. (d) A criminal conspiracy, within the meaning of the word ‘conspired’ as used in these instructions, is a corrupt combination of two or more persons to do* an, unlawful act or to do a lawful act by unlawful means. (e) You are to take and receive all the evidence which the court permitted you to hear- about the alleged shooting of Green Gambrell by Garrett Gambrell for the purpose only, and in so far- only, as it may in your judgment tend to show motive for the acts and conduct of the parties to the difficulty in which John Gambrell was killed, if in your judgment it does so show or tend to show motive. The word ‘motive,’ as used in these instructions by the court, means inducement, reason, cause, or incentive to do the acts and things charged, in the indictment herein, if they or any of them were done.
“2. If you shall believe from the evidence, beyond a reasonable doubt, that the defendants Nelson Gambrell, Silas Gambrell, Rice Gambrell, Thomas Gambrell, Allen Gambrell, or any. two or more of them, including the defendant Allen Gambrell, conspired and agreed to and with each other to kill and murder John Gambrell, and that in pursuance and further
“3. But if you do not believe from the evidence, beyond a reasonable doubt, that the state of facts as set out in instruction No. 2 existed, yet do believe from the evidence beyond a reasonable doubt that the defendant, Allen Gambrell, in this county, and before the finding of the indictment herein, willfully and feloniously shot and killed John Gambrell, not in his necessary or apparently necessary self-defense, and not in the necessary or apparently necessary defense of Nelson Gambrell, Silas Gambrell, Rice Gambrell, op Thomas • Gambrell, or you believe from the evidence, beyond a reasonable doubt, that Nelson Gambrell, Silas Gambrell, Rice Gambrell, or Thomas Gambrell, or any one or more of them, in this county, and before the finding of the indictment herein, willfully and feloniously shot and killed John Gambrell, not in their necessary or apparently necessary self-defense, or in the necessary or apparently necessary defense of one of them or of Allen Gambrell, and that the defendant Allen Gambrell was present at the time and near enough so to do, and did, willfully and feloniously, aid, encourage, advise, or command the person or persons, who did shoot the said John Gambrell, so to do, nth in his necessary or apparently necessary self-
“á. If you find the defendant guilty of willful murder, either under the second or third instructions, you will fix his punishment at death, or at confinement in the State penitentiary for life, in your discretion, according to the proof. If you find the defendant guilty of voluntary manslaughter, under either the second or third instructions, you will fix his punishment. at confinement in the State penitentiary for a period of not less than 2 nor more than 21 years, in your discretion, according to the proof. If you find him not guilty, you will say so, and no more.
“5. If you shall believe from the evidence that no conspiracy existed as defined in instruction No. 2, but do believe that at the time the defendant shot and killed John Gambrell, if he did so, or at the time he aided, encouraged, advised, or commanded Nelson Gambrell, Silas Gambrell, Rice Gambrell, Thomas Gambrell, or any one or more of them, to shoot and kill the deceased, if he did so do, as defined in instruction 3, he believed, and had reasonable grounds to believe, that he or the other defendants above named, or any one or more of them, was then and there in
‘ ‘ 6. But, if you believe from the evidence, beyond a reasonable doubt, that the defendant, Allen Gambrell, first began the difficulty by shooting John Gambrell or making a demonstration to shoot him, then you ought not to excuse the defendant on the ground of self-defense or apparent necessity therefor, or the defense of another or apparent necessity therefor, as defined in instruction No. 4. Unless you believe from the evidence that he, or he and those acting with him, if any, abandoned such assault and difficulty in good faith, and then the deceased, seeing’ or knowing of such abandonment, continued to assault the defendant, or either of the defendants, or- to so menace them or any of them, or that it was necessary, or was- believed by the defendant in the exercise of -a reasonable judgment to be necessary tor shoot the deceased, or to aid, encourage, advise, or command one. of the other defendants to so shoot and kill the deceased in order to avert that danger, real or to the defendant apparent, in which event you ought to acquit the defendant on the ground of self-defense and apparent necessity therefor.
“7. You are further instructed that if you believe from the evidence, beyond a reasonable doubt, that
“8. If you shall have a reasonable doubt from the evidence of the defendant having been proven guilty, then you ought to find him not guilty; or if you shall believe from the evidence, beyond a reasonable doubt, that the defendant has been proven guilty, but shall have a reasonable doubt from the evidence as to whether his crime be willful murder as defined herin, or of the lower offense, voluntary manslaughter, as defined in these instructions, then you ought to find him guilty of voluntary manslaughter, and fix his punishment as provided therefor in instruction No. 4.”
Wherefore, the whole court sitting, the judgment is reversed, with directions for a new trial not inconsistent with this opinion.