151 Ky. 496 | Ky. Ct. App. | 1913
Opinion of the Court by
Affirming.
The grand jury of Perry county returned an indictment against Wayne Grigsby, Monroe Grigsby and Boycan Noble, charging them with having entered into a conspiracy to and with murdering Austin Godsey. The Commonwealth failed to prove, on their trial, that there was any conspiracy, but did show that Wayne and Monroe Grigsby shot and killed Austin Godsey.
It seems from the proof that the three defendants had started to their uncle’s who lived' séven or eight miles away, on Troublesome creek; that they were going along a road near Comb’s branch when they met Jim and Austin Godsey and Henry Brewer; that they all stopped and
Appellants claim that they were entitled to an instruction to the effect that if the Godseys tried to take their whiskey, they had a right to shoot to prevent them doing so. The giving of such an instruction would have been error, as it was not made to appear that the Godseys or either of them put one or both of the appellants in danger of losing their life or lives, or that they or either of them were about to render to appellants or one of them great bodily harm; and the court gave this theory of the case in strong language. At the time Jim Godsey put the bottle into Ms pocket, he was drunk and endeavoring, in a stupid way, to play a joke. Granting, however, that he was in earnest, appellants should have allowed him to keep the whiskey rather than to take his life to regain it. The court gave two sets of instructions, five in each
Each set of instructions was in the -same language, showing that the interchange of names in the second instruction in each set was a mistake or oversight by the court or a mistake by the person who copied the instructions. We are of the opinion, however, that it wa-s not such an -error -a:s would mislead the jury, it matters not how it occurred.
For these reasons, the judgment of the lower court is affirmed.