139 Ky. 173 | Ky. Ct. App. | 1910
Opinion op the Court by
Affirming.
John Henson was indicted in the Knox circuit court. The indictment was in three counts. In the first count it was charged that Henson had conspired
The proof for the commonwealth showed in substance’ these facts: An election for school trustee was to he held at Plat'Lick, Ky. William Bargo and Si Hubbard were the judges of the election and Early was the clerk, having been duly appointed by 'the county authorities. They went to the schoolhouse for the purpose of holding the election. After they had put up the rope to keep persons back 50 feet from the polls, the defendant, John Henson, came under the rope and into the room where they were preparing to open the polls. He presented a paper signed by one of the candidates for school trustee, appointing him as the challenger of that candidate. The officers told him that the paper was not authorized by law and that he could not stay in the room. He refused to leave. While the discussion was going on a voter came in and asked for a ballot. Early declined to issue a ballot until the room was cleared. Henson still declined to go. There were two candidates for trustee. A friend of the other candidate then proposed that he would act as challenger for that candidate, and that he and Henson would both stay in the room. Henson declined to agree to this, and so did the officers. There was considerable discussion over
On the other hand, the proof for the defendant is to the effect that before he shot, a difficulty was in progress on the outside of the house between Slusher and Smith in which Slusher had shot at Smith; that when this shot was fired one of his friends on the outside called to him, “John Henson, come out of there, they aré going to kill you, ’ ’ that as he went to go out
On these facts the court gave the jury these instructions: “(1) If you shall believe from the evidence beyond a reasonable doubt, that the defendants, John Henson, William Smith, Sr., Finley Smith, Frank
The jury found the defendant guilty of murder as charged in the indictment, and fixed his punishment at confinement in the penitentiary for life. The court refused to grant a new trial, and entered judgment on the verdict. The defendant appeals.
It is. insisted for the appellant that the court erred in allowing the dying declaration made by the deceased to be admitted in evidence. After the deceased had been advised by a physician that he must die, when he was gasping for breath, and just before he died, he said to his wife, “Ellen, I am gone, but I wasn’t doing a thing.” It is insisted for the appellant that this declaration does not show what the deceased referred to and that he states merely a conclusion, and not a fact. The doctor was present; the doctor had just advised him that he could not live; and in this connection the deceased turned to his wife, and made the statement above quoted. His wound was the thing in his mind; the wound was the
It is also insisted that the commonwealth was allowed to introduce evidence in rebuttal which should have been admitted in chief. We have examined the rebuttal evidence with some care. . The court attempted carefully to confine the evidence to matters in rebuttal. The transcript of the evidence before us ■covers more than 800 pages, and in so long a trial it would naturally happen that, some things that a witness had said in chief would be repeated in nebuttal, for a circuit judge in such a trial cannot always remember the minutia of the testimony of each witness ; but there was no substantial error in this matter to the prejudice of appellant. The circuit court was careful to admonish the jury that the testimony of witnesses, introduced in rebuttal to contradict the witnesses for the defendant by proving that they had made out of the court statements different from their testimony on the trial, should only be .taken to discredit the witness and not as substantive evidence. It is true he omitted to give this caution in some instances. But he gave it so often that the jury could not have misunderstood.
This brings us to a consideration of the instructions given the jury on the trial. The complaint as to No. 2 is that the court used the words “and not” in this instruction where we have underscored them, instead of the word “or.” There would be force in this objection if that was an instruction defining
It is earnestly insisted that instruction 4 is erroneous in the use of the words “if you shall believe from the evidence that no conspiracy existed, as defined in instruction No. 1 above.” It is said that under this instruction the jury could not consider the plea of self-defense unless they believed from the evidence that no conspiracy existed, thus placing upon the defendant the burden of showing that no conspiracy existed, and depriving him of the benefit of a reasonable doubt on that question. But it will be observed that the court used the words “no con
It is insisted that the instructions given in this case are practically the same as those in Gambrell v. Commonwealth, 130 Ky. 513, 113 S. W. 476, and that in that case the instructions were condemned, and the judgment reversed for the reason that they did not embrace the idea that to deprive the defendant of his right of self-defense it must appear that although a conspiracy existed, the conspirators went to the place where they expected to find the deceased for the purpose of killing him or that when they met him they first commenced the difficulty by shooting or making a demonstration to shoot him, as set out in instruction 7, directed to be given on another trial of that case. There would be much force in the objection if this case was like the Gambrell Case. The court should properly have instructed the jury along the line indicated in instruction 7 in the Gambrell Case; but the question is, under the facts of this case: Was the failure of the court to so instruct the jury an error to the prejudice of the defendant’s substantial rights? In the Gambrell Case, an affray took place between the deceased and his friends and Gambrell and his friends, in which each party was shooting at the other, and the evidence was very conflicting as to
Judgment affirmed.