110 Ky. 190 | Ky. Ct. App. | 1901
Reversing.
Appellant was indicted for the murder of Emma Klekamp. The jury to whom the case was submitted found him guilty as charged, and fixed his punishment at death. Judgment was entered upon this verdict. The only grounds of reversal necessary to be noticed relate to the instructions to the jury given and refused by the court on the trial. To understand these properly, we must briefly state the facts shown by the evidence.
The proof showed that appellant, Jolly, was the brother-' in-law of the deceased, Emma Klekamp. In July, 1900, Jolly and wife were living at Hamilton, Ohio, keeping house. His mother-in-law, Mrs. Klekamp, and her oldest daughter, Minnie, paid them a visit. • Mrs. Jolly came home with Miss Minnie to Newport, where her father lived, bringing with her most of the personal property in the house. Jolly followed them to Newport, and made several unsuccessful attempts to see his wife. He finally secured an interview with her at the office of his attorney, O. W. Koot, in which she declined to return to him; the deceased, Emma Klekamp, being present. He was impressed with the idea that his father-in-law and family were keeping his wife from him, and continued his efforts for further interviews, with a view to her return to him, and was greatly disturbed. He stayed at the house of his sister. She testified as follows: “He came to our house on Wednesday morning. I was washing. He says, 'Sister, I am all left alone;’ and he said, 'I am going to hunt my wife; I am going to hunt my wife; I am going to hunt her;’ and I didn’t see him any more until twelve o’clock. I never had him still a moment. He never ate, and he never slept. He done nothing but run and storm. He was off and on, and up and
On this evidence, the court below instructed the jury as-follows: “(1) If the jury believe from all the evidence beyond a reasonable doubt that in killing Emma Klekamp, in this county and State, and on the 7th day of August, 1900, the defendant, John ,W. Jolly, willfully, wrongfully, feloniously, and with malice aforethought, express or implied, shot her with a pistol loaded with a leaden bullet or other hard substance, from which shooting said Emma Klekamp then and there died, they will find him guilty of willful murder, and in their discretion fix his punishment at death or confinement in the penitentiary for and during his natural life; otherwise, they will acquit him. (2) If, however, the jury believe from all the evidence that the defendant, John W. Jolly, on the 7th day of August, 1900, in this county and State, in killing said Emma Klekamp, shot her with a pistol loaded with a leaden bullet or other hard substance, from which shooting said Emma Klekamp did then and there die, but also believe that at the time of said shooting said John W. Jolly was laboring under such a defect of reason not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know it was wrong, they will acquit him on the ground ■of insanity, and so state in their verdict. (3) If the jury entertain a reasonable doubt as to any facts necessary to constitute defendant’s guilt, they must acquit him.”
The only defense relied upon for appellant was insanity. It will be observed' that the second instruction, which defines the degree of insanity rendering appellant irresponsible criminally for his act, sets it out as such a defect of reason as to disable him from knowing the nature and
The first instruction given by the court is objectionable in its phraseology, and it will be better, on another trial, to give in lieu of it instruction No. 1 asked by the Commonwealth substituting the words, “before the finding of the indictment herein,” for the words “on the 7th day of August, 1900,” in that instruction.
The third instruction may not have misled the jury; for, taking all the instructions together, they perhaps understood that the facts necessary to constitute appellant’s guilt were those set out in the preceding instructions. But
The court properly refused to instruct the jury on the law of involuntary manslaughter. There was absolutely no provocation, and nothing to reduce the crime to manslaughter. It is earnestly argued for the Commonwealth that, in view of the facts of the case, the judgment should be'affirmed on the ground that the substantial rights of the appellant were not prejudiced. But in a case where the death penalty has been imposed we do not fee-1 at liberty to say that the substantial rights of the appellant were not prejudiced where the only defense on which he relied was unduly curtailed by the instructions given the jury, and a material ground of defense entirely left out. To hold otherwise, would be for this court to determine his guilt or innocence, and deny him a trial on the merits of his case before a jury of his peers, as provided by the Constitution.
In addition to the instructions we have indicated, the court should, -on another trial, instruct the jury that the words “with malice,” in their legal sense, denote a wrongful act done intentionally, without just cause, and that by the term “aforethought” is meant a predetermination to do the act, however sudden, or recently formed in the mind, before the act is done. It has been held error to instruct the jury that malice may be implied from certain-facts; but it is proper to define the technical terms used in the charge, for without this the jury may be misled by them. There was no -error in overruling the demurrer to the indictment,