Hardin v. Commonwealth

114 Ky. 722 | Ky. Ct. App. | 1903

Opinion of thf court by

JUDGE NUNN

— Reversing.

The. appellant was tried in the Logan circuit court on an indictment charging him with unlawfully, wilfully, and maliciously shooting and wounding one Will Gaines, with the intent to kill said Gaines; and on the trial the 'evidence showed that the appellant was at the time the keeper of a poolroom in the town of Russellville, and Gaines and others were in front of his building, using boisterous, language, and that appellant went out of his room, on the pavement, where the parties were, and requested them to keep quiet or leave, and appellant and Gaines had an altercation of words, all that was said and done not being made clear; but the accused stepped back, or in his door, and fired and wounded Gaines in the leg.

The court gave to the jury instructions, of which No. 2 was excepted to by the appellant, and is as follows: “The court instructs the jury that if they believe from the evidence, to the exclusion of a reasonable doubt, that the defendant, Jonah Hardin, did, in Logan county, Ky., within one year before the finding of the indictment, unlawfully and wilfully, aud not in his necessary self-defense, or apparently necessary self-defense, and in sudden affray, or sudden heat and passion, without previous malice, and under circumstances reasonably calculated to excite his passions beyond his power of self-control, shoot at and wound one Will Gaines, upon his body or person, with a pistol, a deadly weapon, loaded with leaden ball or balls, or ball or balls of other hard substance, with the intent to kill him, but without, so doing then and in that event the jury shall find the defendant not guilty as charged in the indictment, but guilty of shooting and wounding in sudden affray, or sudden heat and passion, and fix his punishment at a fine of not less than $50 nor more than $500, or imprisonment in the county jail for a period of time not less than six months nor more than twelve months, or both fine and imprisonment, in their discretion.

Prior to the enactment of the statutes defining the offenses described in sections 1166 and 1242 of the Kentucky Statutes, the offenses named therein were misdemeanors under the common law. The Legislature of the State deemed it necessary to enact statutes with reference to such offenses, and in doing so it defined the offense of shooting and wounding another, as described in section 1166, and the offense of shooting in sudden affray or in sudden heat and passion, as defined in section 1242, and fixing the penalties to be imposed under each section. The offense as defined in section 1242 is, “If any person shall, in sudden affray or in sudden heat and passion, without previous malice, and not in self-defense, shoot at,” etc. This we understand to be a complete definition of the offense to be punished by said section. If the, Legislature had intended that the language used in instruction No. 2, “and under circumstances reasonably calculated to excite his passions beyond his power of self-control,” be added to said definition, it would have been in said section.

It is contended by the Commonwealth that the same principles governing a prosecution under sections 1166 and 1242 of the statutes are the same as the common law offenses of murder and voluntary manslaughter; and counsel refer this court to the cases of Rapp v. Com., 14 B. Mon., 615, and Com. v. Yancy, 2 Duv., 375. In these cases the court was discussing common law offenses, and the language used by the court is subject to the construction claimed by the attorney general. But in our opinion the cases referred to have no application to prosecutions under the two sections of the statutes above referred to, for the reason that the common law definition of murder is a very different thing from the statutory offense of shooting and wounding as described and "defined under section 1116, and the definition of the common law offense of voluntary manslaughter is a very different thing from the statutory offense of shooting and wounding as described and defined under section 1241 of the statutes; and the court, in said instruction No. 2. should have confined itself to the definition as given in section 1242 of the statutes, and the interpolation of the language referred to was prejudicial to the appellant.

Wherefore the judgment of conviction of appellant is reversed, and the case remanded to the lower court for proceedings consistent with this opinion.