111 Ky. 93 | Ky. Ct. App. | 1901
Opinion op the court by
Reversing.
The grand jury returned an indictment against the appellant, charging that he had wilfully, feloniously, and with malice aforethought, killed John Thomas, by compelling him to drink large and unusual quantities of whisky] and wine, by beating and bruising him, by burning .him with fire, by dragging him on the ground with a rope or strap tied around his neck, and by leaving him helpless and exposed to the inclemency of the cold winter night, so he did then and there immediately die. The court fixed June 25, 1900, for the trial of the case. After that had been done, the appellant gave notice that he "would, on the day the case was set for trial, tender his petition and1 move the c.ourt for a change of venue. This notice was-served on June 22d, three days before the day fixed for the trial. Pursuant to notice, he tendered a petition asking for a change of venue, and also, the affidavits of Phillip Darnall, T. R. Riley, and J. M. Cornett, residents of Marshall county, not of kin to nor of counsel for defendant, who stated that they were acquainted -with the public opinion in Marshall county, and they verily believed the 'statements in defendant’s petition were true. The petition and affidavits contained the statements made essential by the statute, to which we will advert. The court refused
In testing instructions, every deduction which the jury might have been authorized to make from the testimony-must be assumed as a proven fact. Farris v. Com., 14 Bush, 362; Bush v. Com., 78 Ky., 268. If the defendant unlawfully and intentionally killed the deceased, but without malice, he was guilty of voluntary manslaughter. The jury might have so found from the facts proven. Therefore we are of the opinion that the court should have given an instruction on voluntary manslaughter, drawn to suit the facts which were proven in the case. We think the first instruction to the jury w-as unnecessary, as it simply attempted to state an abstract principle of law, and' should be omitted on the next trial. In the second instruction the court told the jury that, “If you shall believe from the evidence and circumstances proven in the case,” etc. The word “circumstances” should be omitted from the instruction, because the evidence which is permitted to go to a. jury may be parol, documentary,' and circumstantial, all of which is embraced in the word “evidence,” which is ordinarily used in an instruction. To use the word “circumstances” imight toe misleading to the jury, and therefore it is best to omit it. We do not say whether or not this case should be reversed by reason of the fact that instruction No. 1 was given, or because the word “circumstances” was used in the second instruction. The judgment is reversed for proceedings consistent with this opinion.