205 Ky. 493 | Ky. Ct. App. | 1924
Opinion op the Court by
Reversing.
This is an appeal from a judgment based on a verdict finding appellant guilty of manslaughter, and fixing his punishment at five years’ imprisonment in the penitentiary.
The facts are these: The deceased, Dan McKnight, was an uncle of appellant, and, som,e time prior to the homicide, appellant was required' to appear before the grand jury and give evidence of McKnight’s violation of the prohibition act. On the afternoon of the homicide McKnight left home with Jam'es Blair and John Buckley and they went up a hollow to a coal bank. “While they were near the tipple, appellant and Alvin Hutchison came along the hill en route to a point above the coal bank. On seeing appellant John Buckley called him and told him that he wanted to see him. Appellant hesitated, but on being called again he went to “a point near the coal tipple to meet Buckley. While talking with Buckley, McKnight broke into their conversation and asked ap-
In addition to instructions on murder, manslaughter, self-defense and reasonable doubt, the court gave the following instruction:
“The jury are further instructed that although you may find and believe from the evidence that the deceased, Dan MeKnight, previous to the occasion when he was shot and killed had some previous difficulty or difficulties with the defendant, Ed. Murphy, and then or at other times threatened to kill the defendant, or do him some great bodily harm, that these acts or threats and conduct of the said Dan McKnight did not justify the defendant in shooting said MeKnight at the time and on the occasion in question unless the defendant then and there believed, and had reasonable grounds to believe, that the said Dan MeKnight was then and there about to kill him, or inflict upon him some other great bodily harm.
“And the jury are further instructed that although they may believe from the evidence that on the occasion in question' when the said Dan McKnight was shot and killed that he used in and in the presence of the defendant some abusive lan*495 guage that his conduct in doing so did not justify the defendant in killing him, or even shooting at him with a pistol.”
We have repeátedly condemned instructions that group together and give undue prominence to certain particular facts to the exclusion of. other facts which the jury has the right to take into consideration, and have stressed the importance of giving an instruction on self-defense in the usual form, thus leaving the question to be determined by the jury in the light of all the facts, whether relied on by the Commonwealth or the accused. Howard v. Commonwealth, 202 Ky. 711, 261 S. W. 246; Mullins v. Commonwealth, 172 Ky. 92, 188 S. W. 1079; Commonwealth v. Robinson-Pettet Co., 181 Ky. 702, 205 S. W. 774; Urban v. Commonwealth, 196 Ky. 775, 245 S. W. 852. Following this rule it has been held that an instruction on self-defense which grouped together the evidence of former acts of violence on the part of the deceased, and charged that the accused had the right to bear arms openly and keep a lookout for deceased, and that if he casually met him he need not wait to be assaulted but might consider the past, and that, if he believed he was in apparent danger of great bodily harm at the hands of the deceased, he might shoot him, was improper. Reynolds v. Commonwealth, 114 Ky. 912, 72 S. W. 277. It has also been held improper to tell the jury that they could convict on circumstantial evidence, Whitehead v. Commonwealth, 192 Ky. 428, 233 S. W. 890; Bullington v. Commonwealth, 193 Ky. 529, 236 S. W. 961; or that they could not convict on such evidence unless the circumstances were of such character and tendency as to exclude every rational theory of the case consistent with the prisoner’s innocence, 11 Bush, 282; or that the court wanted the jury to try the case alone on the evidence given by the witnesses on the witness stand, “including the dying declaration of the deceased.” Jones v. Commonwealth, 186 Ky. 283, 216 S. W. 607. There are cases, of course, where evidence is admitted for the purpose of impeachment, or is given by an accomplice, and it is necessary to give an instruction limiting its effect, but the case in hand is not of that character. The prior threats as well as the language and conduct of the deceased were admissible as substantive evidence. The jury had already been instructed to acquit the accused if they believed from “all the facts
Judgment reversed and cause remanded for a new trial consistent with this opinion.