133 Ky. 29 | Ky. Ct. App. | 1909
Opinion of the Court by
Reversing.
The principal error complained of is in respect to the instructions given and refused. The court instructed the jury: “(1) That if you believe from the evidence that the defendant Newpome on the--day of June, 1907, not in his necessary or apparently necessary self-defense from death or great bodily harm, then and there about to be inflicted upon him at the hands of the plaintiff, Russell, assaulted, shot, and wounded Russell, you should find for plaintiff and award him in damages such sum .as you will believe from the evidence will fairly and reasonably compensate him for any loss of time, or for any impairment of his power to labor and earn money in the future* resulting directly- from such assaulting, shooting and wounding; and if you shall believe from
It may be well to notice at the1 outset that appellant did not, in the instruction offered, attempt to justify the shooting’ upon the ground that it was necessary in his self-defense, but résted his right solely upon the proposition that he had the right, if it was necessary to prevent appellee from taking down, his fence, to- shoot him. The force that may be used to prevent a trespass depends upon the circumstances surrounding, it. The general rule is. that when a trespass, like.the one. in.question,'is attempted, the owner of the premises has a right to use such means — saving the taking of human life and the infliction of bodily harm — as. in the exercise of a reasonable judgment are necessary, to protect his .premises or property from, forcible invasion., He is not obliged’ to retreat, but may stand his ground, and defend his property by whatever force, short of the taking of human life, or inflicting a serious wound, as is necessary to make
The law regards human life too highly to permit it to be imperiled in attempting to prevent so slight a trespass as the one committed by appellee, even if we accept appellant’s version of what he did as true. Assuming that appellee persisted in laying down the fence, after he had been requested to desist, his acts did not justify appellant in either shooting or wounding him. Questions like this .have been before this court in several cases. In Baker v. Commonwealth, 93 Ky. 302, 19 S. W. 975, 14 R. 185, Baker shot and killed a. person who was making, under the most aggravating circumstances, a forcible trespass upon his premises. In considering his right to protect his property, the court said: “The rule upon the subject as applicable to this case is that a person is not bound to retreat when upon his own premises, but may stand his ground and defend his person or property; but he is not justified to take the life of' a mere trespasser or do him bodily harm to prevent the mere trespass;
Prom this line of authorities, it. will be. seen that it is the law not only in this State, but everywhere, that a mere trespass upon the premises of another —such as was committed by appellee — will not justify the owner of the premises in either shooting, or wounding the, trespasser, unless the trespass be accompanied by acts that amount to an assault.upon the person of the owner such as would warrant him in exercising the right of self-defense to protect his person. Chapman v. Commonwealth, 15 S. W. 50, 12 Ky. Law Rep., 704. And when this right of self defense exists, his act will be excusable or justifiable as the circumstances may appear — not on account of the trespass alone, but because of the attack upon the person. If the argument of counsel for appellant was declared to be the law, it would shock the good sense of the people of this state, and they would be greatly surprised to learn that a man had the right to shoot a person who, upon outlying premises, was committing the trifling trespass of tearing down a fence. The person aggrieved by a trespass of this nature may resort to such means, not involving life or limb, as may be necessary to prevent the trespass and remove the trespasser from the premises. If these means do not accomplish the desired result, he must resort to the orderly and peaceable methods afforded by-the law for the redress of such wrongs. It should be observed that the principle we have announced does not apply to a trespass committed under circumstances of aggravation upon the. home of a person. When a man’s home is invaded, after a request to desist, the owner may resort to such means as are necessary in the exercise' of a reasonable judgment to expel the intruder. Watson v. Commonwealth (Ky.) 116 S. W. 287; Wright v. Common
Instruction No. 2 given by the court was more favorable than the appellant had the right to request.
The admission of the testimony of George1 Lake, Jr., as to the conversation between himself and appellant, a few days after the shooting, was not error. It was compeient as an admission.by appellant of the purpose for which he obtained from Lake the pistol with which he did the shooting.
The judgment is affirmed.