181 Ky. 422 | Ky. Ct. App. | 1918
Opinion of the Court by
Affirming.
On. September 25th, 1916, Tom MeGehee and Taylor McGehee, his grandson, were walking along the public road in front of the residences of Ben Harrison Wells and his son Richard Wells, near Kirkmansville. Tom McGehee was armed with a pistol and two bottles of “white lightning,” from which he and his grandson, Taylor, had been partaking. According to the witnesses for the Commonwealth they were noisy, drunk and cursing; and Tom McGehee admits that when he was 150 yards from the house he shouted “whopee” a time or two, and shot at a sapling.
After they had passed the home of Ben Harrison Wells, they turned off the road, went through a gate and started across an’ old field that belonged to Ben Harrison Wells, and toward Taylor McGehee’s residence. About that time Bichard Wells remonstrated with the McGehees concerning their misconduct, saying they should not curse and blackguard along the highway in front of his house,.or his father’s house. This remark seemed to offend Taylor McGehee and he began cursing and abusing Bichard Wells, and finally struck him, whereupon Bichard Wells knocked Taylor McGehee down. While they were upon the ground Tom McGehee shot Richard Wells with a pistol. Richard Wells turned
On the other hand, according to the story of the Mc-Gehees, Ben Harrison Wells and Richard Wells, were the aggressors. The McGehees testified that when they were about fifty yards away Ben Harrison Wells began cursing and abusing them and told them to come out of his field, and that they returned to the road; that Tom Mc-Gehee tried to conciliate Ben Harrison Wells by offering him a drink of whiskey, which was refused; that before he could quiet Ben Harrison Wells Richard Wells came on the scene, knocked Taylor McGehee down and got on him and beat him after he was on the ground, and that while Taylor McGehee was on the ground Ben Harrison Wells kept Tom McGehee from separating them by threatening to shoot him with a shotgun. They further testified that when Richard Wells got up from beating Taylor McGehee, Ben Harrison Wells shot at Taylor McGehee; that Richard Wells then tried to take the shotgun from his father, and in the scuffle the gun was discharged while both had hold of it; that when Richard Wells finally secured possession of the gun he shot . Tom McGehee in the shouldér with the remaining charge, reversed the gun and attempted to strike him with the butt of it; and that as he was advancing with the. gun drawn to strike, Tom McGehee shot Richard Wells, killing him.
Tom and Taylor McGehee were jointly indicted for the murder of Richard Wells, and upon the trial Taylor
Tom McGehee appeals, assigning as errors that the court erred (1) in overruling the demurrer, to the indictment; (2) in refusing, to grant him a continuance; (3) in refusing to peremptorily instruct the jury to find Taylor McGehee not guilty; and (4) in giving instruction, and in failing to correctly instruct the jury on the law of self-defense.
“If Barrett had died within a year and a day from the date of the shooting, and if appellees had been jointly indicted for murder, it is plain no valid objection could have been urged against the joint indictment. Such a proceeding is often followed./
Mrs. Untie Wells was the widow of Richard Wells, who was killed, and was a sister of Taylor McGehee; while Omer McGehee was related to the defendants. One of the principal issues upon the trial was whether the shotgun was fired before or after the pistol shots, and it is insisted that Mrs. Richard Wells, who resided nearby, would have testified that the shotgun was fired first.; that it was impossible for anyone to have gone the distance from the gate to Ben Harrison Wells’ house and back (about thirty-five or forty yards), in the period of time which intervened between the shots; and that Lutie Wells and Omer McGehee would have corroborated her. It will be remembered, however, that Richard Wells was killed on September 25th, 1916. The McGehees were indicted in December of that year and were tried on March 26th, 1918, precisely eighteen months after the killing, and after several terms of court had intervened. The affidavit as to what these absent witnesses would have testified to, if they had been present, was read as their depositions. Under the circumstances, it cannot be said that the trial court abused its discretion in refusing to further postpone the trial of the case.
In Greenwell v. Commonwealth, 125 Ky. 192, several defendants were tried for murder, and the court gave instructions similar to the instructions given in this case. In that case the court said:
“As applied to the'facts of the case, the instructions, though not well drawn, could not have misled the jury, and under the Code a judgment of conviction cannot be reversed unless upon the whole record it appears that the defendants’ substantial rights were prejudiced. ’ ’
The instructions in the case at bar are clearly drawn, and are not subject to the criticism made of the instructions given -in the Greenwell case.
It is further insisted that the second instruction should have contained the qualifying clause that appellant could be guilty only in case he shot and killed Richard Wells not in his necessary or apparently necessary self-defense, or in the defense of his co-defendant. It is true this qualification is not found in the second instruction, but it is carefully given in the sixth instructon; and as the instructions must be read together, the appellant was not prejudiced.
It is further insisted that the sixth instruction should have given the appellant, naming him, the right to shoot in his or his co-defendant’s defense, without adding the words “and kill,” as set out in the instruction. The instructions give either defendant the right to shoot and kill in his own self-defense or in the defense of his co-defendant ; and certainly the generality of the instruction could not have prejudiced appellant.
Judgment affirmed.