93 Ky. 189 | Ky. Ct. App. | 1892
delivered the opinion oe the court.
The appellant has been convicted and sentenced to con
It is made manifest from the testimony that the accused and the dead man had been so hostile towards each other for months prior to the killing that each was ready to slay the other upon the slightest provocation; and such was the bad feeling between them that when seen on the-highway they had as their chief weapons either a double-barreled shot gun or a Winchester rifle. The origin of the difficulty between the two seems to have been caused by the willingness of the appellant and his family to give-shelter to the wife of Burk, who had left him and gone-to the home of the appellant. The cause of the separation is not shown from the testimony. The dead man,, however, made inquiry as to where his wife and Martin were and threatened then to kill them both, and solely for the reason that when Mrs. Burk left her husband she-had gone to Martin’s home, for there is not the slightest proof of any improper conduct on the part of Mrs. Burk.. After this threat it seems that Martin claimed that Burk was indebted to him for services rendered (having doubtless made friends, in appearance at least), and that Burk would not pay him. Martin, to collect his debt, used a, shot gun and compelled Burk against his will to pay him, and for this conduct Burk had Martin indicted in the Barren Circuit Court for robbery. From that time-on the parties were threatening to take each the other’s life, and were armed whenever seen.' •
On the day of the killing Burk had gone to the county
"We will not discuss the testimony in the case, as it must be sent back for another trial.
During the progress of the trial, for the purpose of showing a motive on the part of the accused to take the life of Burk, the fact that Burk had procured the indictment for robbery against him was permitted to be shown by the production of the indictment and the name of Burk as a witness. This was all proper, but the court permitted, over the objections of the accused, the witness
Motive may be shown in certain cases by a state of facts conducing to make out another and distinct offense from that for which the accused is being tried.
In passing a counterfeit bill; for the purpose of showing a guilty knowledge, it may be shown that the accused had passed similar bills, knowing them to be counterfeit. When the husband was murdered by the accused, the intimate relation between the "wife of the deceased and the accused may be shown as a motive for the commission of the offense. (Stout v. People, 4 Parker’s Crim. Rep., 132.)
So it was competent to show in this case that the accused had been indicted for robbery at the instance of the deceased, but not to establish the offense by testimony of the facts necessary to show guilt, or to permit the entire record, including the affidavits for a continuance, to be read to the jury. The appellant was being tried for two offenses. His guilt of robbery was permitted to be shown in order to fix upon him the crime of murder, and must have been prejudicial to his substantial rights. This character of evidence is likely to be wrongfully considered by a jury and made to constitute a part of the offense for which the party is being tried, as it might well be argued that one so depraved as to commit the crime of robbery would not hesitate to commit murder; and we think, therefore, proof of the charge of robbery on the facts, with a view of showing guilt, was error.
The instruction in regard to self-defense was qualified by adding, “ unless they should further believe, beyond a reasonable doubt, that the danger to the defendant was-occasioned by his own fault in seeking the said Burk for the purpose of inflicting death or other great bodily harm upon him and endeavoring to execute said purpose. ” "While it is the law, that if the appellant stationed himself at this point, knowing the deceased would pass, for the purpose of taking the life of the deceased, and had not abandoned his intention at the time he fired, he is guilty of murder, still it seems to us on the facts proved, the law of self-defense without qualification should have been given. If the deceased first presented- his rifle at the appellant, and the appellant, to save his own life, fired before the deceased, the plea of self-defense is sustained.
The judgment is reversed, with directions to award a ' new trial and for proceedings, consistent "with this opinion.