59 S.W.2d 540 | Ky. Ct. App. | 1933
Reversing.
This is an appeal from a judgment imposing on appellant a fine of $100 on a charge of striking and wounding with intent to kill.
Appellant was the marshal of the town of Martin, in Floyd county, and Thomas Fitzpatrick was postmaster. One evening during the month of October, 1931, there was a dance in the town. After closing his office, Fitzpatrick rode in his car to the hall where the dance was in progress. On his arrival he loaned his car to a boy, who stated that he would return it in a few minutes. According to Fitzpatrick, appellant approached him and told him that he had better go home. He replied that he was not going until he got his car, After some words appellant pulled a black-jack and beat him until he was almost unconscious. He was not drunk at the time, and appellant never told him that he was under arrest, but did tell him to go home. Though saying that he did not know who struck the first lick, he practically admitted that he struck appellant with his fist, and appellant then hit him with the black-jack. J.B. Risner testified that appellant struck Fitzpatrick several blows, then grabbed him and shoved him into the car, and kept on hitting him after he was in the car. He did not know whether Fitzpatrick hit or shoved appellant. After Fitzpatrick knocked him off, appellant got his black-jack. He did not know whether appellant was trying to arrest Fitzpatrick or not. On the other hand, appellant testified that when he arrived at the dance he found Fitzpatrick drunk. As they were friends he tried to persuade Fitzpatrick to go home so that it would not be necessary to arrest him and place him in the lockup. On Fitzpatrick's refusal to go appellant tried to induce him to get in appellant's car and let appellant take him home. Fitzpatrick again refused, whereupon appellant informed him that if he did not go home he would have to arrest him. Fitzpatrick then *575 lost his temper and struck appellant several blows with his fist. To repel the attack, and in his own defense, appellant struck Fitzpatrick with his billy. Fitzpatrick continued to fight, and when appellant attempted to put him in his car to take him to the lockup Fitzpatrick kicked him. About this time the witness John Risner appeared, and snatching appellant's pistol from its holster presented it on appellant and prevented him from making the arrest.
The only ground urged for reversal is that instruction No. 6 was erroneous. That instruction reads as follows:
"The Court further instructs the Jury that the defendant was a Peace Officer, a policeman of Martin, at the time and place referred to in the evidence, and had the right to arrest any person committing an offense in his presence or against whom he held a warrant for his arrest and to use such force as was necessary to effect such arrest; if the Jury believe from the evidence that at the time and on the occasion referred to in the evidence, the said Fitzpatrick was drunk or intoxicated on the public road or in a public place in the presence of defendant, and that defendant proposed to arrest him therefor, first notifying him of his purpose to do so and of the offense charged and to use such force as was necessary to effect such arrest, except he had no right to strike and kill him or to use more force than was necessary to effect such arrest, and if the Jury believe from the evidence, defendant was in good faith attempting to arrest said Fitzpatrick, and that he was drunk and that defendant used no more force than was necessary to effect such arrest, you will find defendant not guilty."
It is true that, inasmuch as section 1148a-7, Kentucky Statutes, making it a felony to disturb, hinder, obstruct, or intimidate an officer while engaged in discharging his duty as such by violence, force, or threats, was held unconstitutional, Loveless v. Commonwealth,
Judgment reversed, and cause remanded for a new trial consistent with this opinion.