129 Ky. 497 | Ky. Ct. App. | 1908
Affirming.
Under an indictment charging him with the murder of C. W. Gayle, the appellant was convicted. The-jury fixed his punishment at imprisonment for life in the State penitentiary. Prom a judgment entered on the verdict, he prosecutes this appeal.
The deceased and appellant were close neighbors;, the houses they respectively lived in not being over 100 yards apart. There are many facts testified to showing that they were good friends, and a few hours-before the killing they were together.engaged in social conversation and arranging or settling some business-matters between them. Yet, notwithstanding the outward and general appearance of friendliness and good feeling for Gayle on the part of appellant, there is evidence that to various persons at different times, within a few weeks before he killed Gayle he made threatening remarks concerning him. To one person he said, in speaking of Gayle in connection with a woman named Rebecca Clark, who was visiting at his (appellant’s) house, that, “if Gayle ever put his foot on his premises while she was there, he would kill him. ’ ’ To another, in speaking of trouble he had with Gayle about some flour, he said; “Those Gayles are going to keep a fooling with me until I kill some of them.” To yet another he said, in talking about Gayle’s hog getting into his garden, that, “if the hog-got back in the garden, he intended to kill the hog, and, if Gayle said■ anything about it, he would kill him.” And to others he made remarks of a less threatening-nature about deceased tending to show a hostile feeling. The homicide occurred on Monday about mid
Three alleged .errors are relied on by his counsel: First, the failure of the trial court to permit witnesses to testify as to the relations that existed between the deceased and the Clark woman; second, in giving to the jury an instruction upon the subject of the insanity of the appellant; and, third, in failing to properly instruct the jury as to the right of Leach to shoot if he believed the person he shot was at the time attempting to break into his house or commit a felony.
Rebecca Clark, who was the chief witness for the Commonwealth, was not inquired of concerning her immoral intimacy with the deceased, but Bassitt and other witnesses introduced in behalf of the accused were asked if they knew what the relations between
Several witnesses were introduced by appellant who said that for a number of years he had been subject at intervals to epileptic fits, and that while under the influence of this disease he was prostrated mentally and physically but when he recovered from the effects of the disorder, which only continued for a few hours, he was not legally incompetent to form a criminal intent or commit a crime. But, as no evidence was introduced affecting the mental capacity of the accused at the time he killed Gayle, his counsel argue that the evidence relating to epileptic fits was offered only to show his weak condition generally, and not for the purpose of resting upon it an instruction upon the subject of insanity; and the complaint is made that the court erred to the prejudice of appellant in giving to the jury an insanity instruction. It may be conceded that the evidence introduced in behalf of appellant did not authorize the court to submit to the jury an instruction upon the subject of his mental soundness at the time of the homicide, but we are unable to perceive in what respect the giving of this instruction could have been prejudicial to the accused. It gave to him the benefit of an instruction he was not entitled to, under which the jury might have acquitted
It is insisted that none of the instructions given to the jury presented the defense of appellant. His counsel contend that, as he believed at the time he fired the fatal shot that the person at whom it was fired was attempting to enter his house,' he had the right to shoot to prevent such entry. A man has a •right to kill a burglar or thief who is at the time committing a felony by attempting to break into his house. And so he may, if necessary to protect himself or family from death or bodily harm, shoot an assailant. But a person has no legal or moral right to kill another merely because in the nighttime he comes upon his premises or even knocks on the door of his house. The owner, controller, or occupant of premises who in the night or day time shoots and kills an intruder or trespasser cannot excuse or justify his conduct upon the ground that the person killed was a burglar or thief and upon the premises for the purpose of committing a felony, or attacking with evil intent the person in possession of the premises, in the absence of some evidence conducing to establish this defense. Kentucky Criminal Law & Procedure, by Roberson, sections 155-157; Bishop’s New Criminal Law, section 858; Chapman v. Commonwealth, 15 S. W. 50, 12 Ky. Law Rep. 704; Utterback v. Commonwealth, 105 Ky. 723, 20 Ky. Law Rep. 1515, 49 S. W. 479, 88 Am. St. Rep. 328; Baker v. Commonwealth, 93 Ky. 302, 19 S. W. 975, 14 Ky. Law Rep. 183; Saylor v. Commonwealth; 97 Ky. 184, 30 S. W. 390, 17 Ky. Law Rep. 100; Wright v. Commonwealth, 85 Ky. 123, 2 S. W. 904; Sparks v. Commonwealth, 89 Ky. 644, 20 S. W. 167, 12 Ky. Law Rep. 402. If there was any evidence that Gayle at the time he was
After a careful consideration of the entire record .and the well-prepared argument of his counsel, we
The judgment of the lower court must be affirmed.