89 Ky. 653 | Ky. Ct. App. | 1888
delivered the opinion op the court.
Henry Miller and John Bosse having been jointly indicted for the murder of Larkin Bird, and convicted of manslaughter, prosecute this appeal.
It appears the deceased, whose reputation was proved to have been that of a quarrelsome and dangerous man, had, a short time before getting to the place he was killed, drawn his pistol on three men and fired at another. Unless the result of the aimless wandering-of a restless drunken man, for he was under the influence of liquor, there is nothing to satisfactorily show why the deceased stopped at the particular place he did, which was about one hundred and fifty yards-from the dwelling-house of Bosse. The evidence is, that soon after getting there, he, being alone, commenced to fire his pistol, some of the shots, of which there were three or four, being fired in the air, or at random; one of them, as a witness states, was fired at his own hat, which he threw up for the purpose; another shot struck in the yard of Bosse, and, as his wife stated at the time, came near hitting her. There is also evidence he called the name of Bosse in a disrespectful manner. Immediately after his wife cried out she was near being struck, Bosse went into his house and got two guns and a pistol, and started with them towards the deceased, intending, as he testified, to give one of the guns to his son; but Miller took one
Appellant, during the trial, offered to prove, and avowed the witness, if permitted to answer the questions propounded, would state the deceased told Trim the day before the homicide he intended to kill ap
In this case the guilt or innocence of Miller materially depends upon whether, at the time he shot, the deceased was advancing upon him with a drawn knife, and, consequently, whether he had reasonable grounds to believe, and did believe, he was then in danger of losing his life or suffering great bodily harm, or whether he shot wantonly and without legal excuse. In determining that question of fact, about .which the contradictory testimony of the witnesses was calculated to create some doubt that might have been resolved against the accused, it seems to us it was entirely pertinent to show threats by the deceased
There is a distinction between the inquiry, whether the slayer of his fellow-man was induced to do the deed by a reasonable apprehension, founded upon threats made by the deceased, communicated and known to him, and the question of fact, whether the one or the other commenced the conflict; for in the latter .case the inference the deceased began it may arise from the existence of his hatred and revenge, whether known to the other or not. The competency of such evidence has been expressly recognized by this court in Hart v. Commonwealth, 85 Ky., 77.
One of the witnesses made the following statement, •obviously in answer to questions by the Commonwealth’s Attorney: “My son was standing near me when the killing took place; he is going on twenty-one years of age; he is in Arkansas; he bought his •own ticket to go; he worked under me and another man, and I was employed by the Star Coal Company, •of which defendant, Bosse, is a member, and we paid him. He did not go away to keep from being a witness ; he had been talking of going away for a year before the killing, and was waiting to make money to go on; he was a witness on the examining trial of this case.”
The answers of the witness show that the Commonwealth’s Attorney was persistent in his endeavor to show the witness had been, by bribery, or in some
For the errors indicated, which, we think, were prejudicial to the substantial rights of the defendants, the judgment as to both of them is reversed, and cause, remanded for a new trial.