125 Ky. 192 | Ky. Ct. App. | 1907
Opinion op the Court by
Affirming.
Charles M. Greenwell, Webb Greenwell, and Russell Greenwell were jointly indicted in the Nelson circuit court under section 1166, Ky. Stats., 1903, for
They ask a reversal of the judgment on the following grounds: (1) The court erred in overruling their demurrer to the indictment. (2) The court erred in the admission of evidence. (3) The court erred in instructing the jury. (4) Misconduct of the commonwealth attorney in the concluding argument. The objections will be disposed of in the order stated.
1. The indictment, was in four counts. In the first count it was charged that the three defendants willfully and maliciously shot at and wounded Overton Newton with a pistol, a deadly weapon, and struck and wounded him with a shotgun, a deadly weapon, and struck and stabbed him with a knife, a deadly weapon, with intention to kill him. In the second count it was charged that Webb Greenwell shot Newton with a pistol willfully and maliciously with intent to kill, and that Charles M. Greenwell and Eussell Greenwell were present, aiding, counseling, and assisting him in so doing. In the third count it was charged that Charles M. Greenwell willfully and maliciously struck and beat Newton with a shotgun with- intention of killing him, and that Webb Green-well and Eussell Greenwell were present, and willfully and maliciou'sly aided, counseled, and assisted him in so doing. In the fourth count it was charged that Eussell Greenwell willfully and maliciously cut and wounded Overton Newton with, a knife with intent to kill him, and that Charles M. Greenwell and Webb Greenwell were present, and willfully and maliciously aided, assisted, and abetted him in so
2. The proper understanding of the second objection requires a brief statement of the facts in the case. Some time previous to September, 1905, Webb Greenwell had killed John Burns. Overton Newton, Miles Plead, and others were members of a sheriff’s posse which hunted for him to arrest him for the homicide. Greenwell was acquitted of killing Burns. After this, on September 23, 1905, the three Green-wells, Overton Newton and his brother, Miles Head, and others, were at Balltown, a small town in Nelson county,' where there were two saloons. While there that day Webb Greenwell used very ugly language about the men who had assisted the sheriff in arresting him, cursing them, and saying he would get even with them. He had some words with Miles Head, and choked Head, making threats about what he would do.- Later he cursed Overton Newton, and said to him that he (Newton) had come out to help arrest him when he killed Johnny Burns, and he intended to have his day with every one who assisted in that arrest. There is some conflict in the evidence as to what followed. The evidence for the commonwealth is to the effect that'Newton told him he had nothing
3. The court gave six instructions — the first instruction covering the offense of malicious wounding; the second being similar to it, but covering the offense of wounding in sudden heat and passion; the third being the hard labor instruction in case a fine was
“(1) The court instructs the jury: If you believe from the evidence, to the exclusion of a reasonable doubt, that in Nelson county, before the finding; of the indictment herein, the defendants, "Webb Green-well, Charles Mack Greenwell, and Russell Greenwell, acting together and in concert with each other, or that one or more of said defendants, willfully and maliciously shot and wounded Overton Newton with a pistol with intention to kill said Newton, or willfully and maliciously cut said Newton with a knife with mention to kill him, or willfully and maliciously struck said Newton with a shotgun with intention to kill him (if yon believe from the evidence, to the exclusion of a reasonable doubt, said shotgun was a weapon reasonably calculated to produce death when used by a person of the physical strength of and in the manner in which it was used by one of the defendants on said occasion, if either of them did strike Newton with a shotgun), you should find the defendants or defendant who so shot or cut or struck said Newton, if any of the defendants did, guilty of malicious wounding, and fix the punishment of such defendant or defendants at confinement in the penitentiary for any time not less than one nor more than five years, and if you further believe from the evidence, to the exclusion of a reasonable doubt, that at the time said Newton was so shot, cut, and struck, or a.t the time he was either so shot, cut, or struck, if he was so shot, cut, or struck by defendants, or any of them, the other defendant or defendants were present or near enough to aid and assist said shoot
(6) If you believe from the evidence that, at the time defendants or any of them shot Overton Newton with a pistol or cut him with a knife or struck him with a shotgun, if any of the defendants did so shoot or cut or strike him, the defendants believed and'had reasonable grounds for believing any one or more of said defendants was then in immediate. danger of loss of life or of receiving great bodily injury at the' hands of said Newton, and believed, and had reasonable grounds to believe, they had no apparent and safe means of averting said danger except by shooting, cutting, or striking said Newton, they are excusable on the ground of self-defense and apparent necessity, and you should find them not guilty, unless you further believe from the evidence, to the exclusion of a reasonable doubt, that the defendant or defendants so in danger from said Newton, if any of them were in danger from him, sought and provoked the difficulty with said Newton, in which they or any of them shot, out, or struck Newton, if any of them' did shoot, cut, or strike him, and made the danger, if any, to said defendant or defendants from Newton necessary or apparently necessary to said Newton to defend himself from said defendants or
The first instruction is not subject to objection on the ground that it authorizes the jury to find the defendants guilty of one of several offenses. The offense with which they stood charged was malicious wounding, and it was charged' that this offense had been committed in several different ways. If they had committed the offense in any of the ways, thej were guilty. The sixth instruction is not liable to' objection on the ground that it required all of the defendants to believe and have reasonable grounds to believe that one or more of their number were then in danger in order for one of them to act: Taking the instruction as a whole, no jury could have understood that one of them had not the right to act in his self-defense, if he believed and had reasonable grounds to believe that he or either of his brothers was in danger. The sense of the instruction is so evident, taking it all together, that no jury could-have misunderstood it, especially when it is read in connection with instruction No. 5, on reasonable doubt. As applied to the facts of the case, the instruction, though, not well drawn, could not have misled the jury, and under the Code a judgment of conviction cannot be reversed unless upon the whole record it appears that the defendant’s substantial rights were prejudiced.
4. In the argument of the case to the jury neither
Judgment affirmed.