196 Ky. 90 | Ky. Ct. App. | 1922
— Reversing.
Upon their joint trial in the Rockcastle circuit court, under an indictment charging them with the murder of Walter Rice, whom, they admittedly shot and killed, the appellants, Horace Norton and Zade Norton, brothers, by verdict of the jury and judgment of the court, were each convicted of the lesser crime of voluntary manslaughter, and the punishment of each fixed at confinement in the penitentiary seven years. They, jointly and severally, moved for a new trial in the court below supported by the same grounds, the overruling of which motion as to each resulted in their prosecution, jointly and severally, of the present appeal.
The grounds urged for the reversal of the judgment of the circuit court are, that it erred to the prejudice of the substantial rights of the appellants: (1) In giving the jury the instruction marked “No. 4;” (2) in permitting misconduct on the part of the Commonwealth’s attorney in argument to 'the jury; (3) in admitting incompetent and excluding competent evidence. •
Counsel for appellants makes no complaint of the other instructions given the jury by the court, but he insists that instruction No. 4, by reason of its modification respecting the law of self-defense, as previously correctly stated' therein, was unauthorized by the evidence, misleading to the jury and, consequently, highly prejudicial to the appellants. Without the qualification referred to the instruction was as follows:
“Although you may believe from the evidence beyond a reasonable doubt that the defendants, Horace Norton and Zade Norton, shot and wounded the deceased, Walter Rice, with a pistol or pistols, from which shooting and wounding the said Rice did die within a year and a day thereafter, yet if you shall believe from the evidence that at the time they did so, if they did so, they believed and had reasonable grounds to believe, that the defendant, Horace Norton, was then and there in immediate danger of death or the infliction of some bodily harm at the hands of the deceased, Walter Rice, then the defendants each had the right to use such means as reasonably appeared to them to be necessary to avert said danger, real or to the defendants reasonably apparent, even to' the extent of so shooting and killing of said Rice, in this event, you should find the defendants not guilty on the ground of self-defense, or apparent neeessiay therefor, as to the defendant, Horace Norton, and upon the ground*92 of the defense of Horace Norton, or apparent necessity therefor, as to the defendant, Zade Norton. ’ ’
The qualification of the foregoing part of the instruction was added by the court in the following language: “Unless you shall further believe'from the evidence beyond a reasonable doubt that the defendant, Horace Norton, and the deceased, Walter Rice, mutually and voluntarily entered into the actual combat with the intention upon the part of each to kill the other, or do the other some great bodily harm, in which event you cannot acquit either of the defendants upon the ground of self-defense or apparent necessity, or the defense of another, to-wit: Horace Norton, or apparent necessity therefor.”
Whether the instruction should have been qualified as indicated is a question that must be determined by the evidence heard on the trial, from which it appears that several months prior to the homicide a difficulty, from some cause unexplained, occurred between the appellant, Horace Norton, and Walter Rice, the deceased, which, without resulting in an encounter, led to such enmity between the parties that it for a considerable time prevented any friendly intercourse between them when they chanced to meet, during which period the deceased’ repeatedly made to others threats against the appellant, Horace Norton. However, this ill-feeling seems to have so far subsided that on more than one occasion, shortly before the homicide, they were heard to pass the greeting customarily used by acquaintances upon meeting.
The homicide occurred at the store of one Robert Nicholls, near the village of Pongo, about -twilight of the day on which the November election, 1921, was held. Pongo was the voting place of the precinct in which the parties to the homicide resided. The deceased arrived at Pongo early in the morning of the election and remained until late in the afternoon and was drunk, or to a great extent under the influence of intoxicating liquors, throughout the day. He was by reputation, indisputably established by the evidence, notoriously a person of violent temper, quarrelsome disposition, a producer of difficulties and desperate fights. The appellant, Horace Norton, also attended the election in question but did not get to Pongo until late in the afternoon, certainly not earlier than three o’clock. He was not then drunk, and though drinks of liquor admittedly
It is patent from the facts furnished by the evidence thus far considered, which we find to be uncontradicted, that the appellant, Horace Norton, manifested no disposition to take the life of Rice, the deceased, or engage in a fight with him before leaving Pongo. On the contrary, his getting into the difficulty there with Rice seemed accidental rather than intentional, and the manner in
On the other hand, the evidence as to the occurrences at Pongo present the conduct of Rice in a different light, for it not only shows him to have been the aggressor in' the unfortunate events that there took place before the departure of the Nortons, but also that he continued the aggressor by immediately himself taking horse, following Horace Norton and renewing with him the difficulty that had just ended at Pongo without bloodshed. His purpose in thus acting and the motive are shown by the haste with which he acted and the threats he was heard to make against Horace upon leaving Pongo and while the departing Nortons were still in view. To the witness, Dock Nicely, he then said.of Horace Norton, “I’ll kill the G— d— son of a b — ,” and to the witness, Joe McClure, “I’ll make that G— d — Horace Norton eat his pistol. ’ ’ There was no attempt made to contradict the above named witnesses.-
What; occurred after Rice overtook the Nortons appears from the uncontradicted testimony of the three Nortons and James Doan. Upon overtaking the party, Rice rode his horse between those of Horace and Zade Norton, saying in substance he was going their road too, although to take that unaccustomed road to his home would carry him more than a mile out of the-way. Immediately after joining the Nortons, the party arrived at the road he (Rice) should have taken to go to his home, where he was advised by Doan, who feared a renewal of the difficulty between Rice and Horace Norton, that he had better go home, his wife might be looking for him. Rice, however, refused to do so, saying: “By G — , I don’t have to, I will go any d— way I want to and come back when I get ready.” Rice, after.making the above statement, rode on with the party toward Nieholl’s store, but continued in an angry mood, which he expressed in frequent oaths and by drawing his pistol and making demonstrations as if about to shoot Horace Norton, seeing which Horace said to him: “You are not going to -slip around and shoot me are you?” Rice’s response to this
We think the synopsis of the evidence herein set forth fairly presents all the material facts relating to the homicide in question, and we are unable to see that they furnish any ground for the modification of instruction No. á, as done by the trial court.
In 29 Cyc., p. 257, a “mutual combat” is said to be: “A"combat in which both parties willingly enter.”' In Wilson v. Com’lth, supra, a “mutual combat” is defined as follows:
“What the law designates as mutual combat is where two persons upon a sudden quarrel and in hot blood, mutually fight on equal terms. It does not cover a state of ease where combat was sought by one or more parties for the purpose of killing or inflicting great injury on the other. . . . The law does not require that one who has been attacked by another with a deadly weapon, or has made demonstrations manifesting an intention to commence an attack, to retreat, but he has the right to stand and defend himself; and if in so doing it becomes necessary, or upon reasonable grounds apparently necessary, that he should kill his assailant, the killing is excusable on the ground of self-defense.”
In the case at bar the evidence falls as far short of showing that the appellant, Horace Norton, commenced or brought on the encounter resulting in the killing of the deceased, as it does of showing that the death of the latter resulted from a mutual combat between the parties.
We may, therefore, say of the qualification given instruction 4, by the trial court, what was said in Hicks v.
“Has no place under the facts of this case. . . . There is nothing in the testimony tending to show in the slightest degree that defendant commenced the difficulty •by shooting at the deceased, or that the meeting was the result of any mutual consent to engage in an armed conflict so as to limit the right of self-defense on the part of the defendant.”
While, according to all the evidence, the deceased was the aggressor in the difficulty in question from its beginning at Pongo to its ending at Nicholl’s store, and at the latter place took the initiative by directing at Horace Norton, as he was leaving his presence to enter the store, the first of the several shots that were fired, it nevertheless remained for the trial court to submit to the determination of the jury the single issue of fact as to whether the killing of the deceased by the appellants, or either of them, was necessary, or reasonably appeared to them to be necessary, to protect Horace Norton from immediate death or great bodily harm at his hands. But this issue of fact, as we have shown, was not properly submitted to the jury; for though the law controlling its decision was correctly stated in the first part of instruction 4, the qualification added thereto by the trial court made the instruction, as a whole, erroneous, misleading and highly prejudicial to the substantial rights of the appellants. Instructions that are not predicated upon the facts-of the case, however accurate their statement of the law in the abstract, should never be given. Thomas v. Com’1th, 195 Ky. 624; Brenn v. Com’1th, 169 Ky. 815. With the qualification it contains omitted, however, instruction 4 properly may be given on another trial.
It'does not appear from the evidence, nor is it claimed for the Commonwealth, that the appellant, Zade Norton, was in any way involved in the altercation between his brother Horace and the deceased prior to the shooting at Nicholl’s store.. But it is both shown by the evidence and conceded for the Commonwealth that his participa-tion in the shooting began after there had been an exchange of pistol shots between the deceased and Horace, and that the part he then took in the shooting was in aid of and to protect the latter. Obviously, in such a state of case, what would excuse the shooting or killing of the deceased by Horace Norton would excuse Zade Norton
The complaint of alleged misconduct of the Commonwealth’s attorney, raised by appellants’ second contention, may briefly be disposed of. The alleged improper statements constituting the alleged misconduct were made, it is claimed, by the Commonwealth’s attorney in the closing argument to the jury. These statements are in part set forth in ground 6, filed with and in support of the motion for a new trial, but appear in full in the bill of exceptions; and as we must be controlled by the latter, when the statements as therein set forth, with the circumstances that appear to have attended their utterance, are considered, it is apparent that they were provoked by and made in response to statements, outside of the record, emanating from appellants’ counsel in a previous argument to the jury. It may well be questioned whether the appellants were seriously prejudiced in any substantial right by the statements referred to, the failure of the court to exclude them, or to reprove the Commonwealth attorney for making them. We do not think the second error complained of .sufficient, of itself, to compel the reversal of the judgment. Indeed, in several cases we have, for like cause, refused the reversal of a judgment of conviction, and even declared that: “The objection to an improper argument by the attorney may be cured, when it was only in reply to another one made by the opposing counsel in discussing the same feature of the case.” Welch v. Com’lth, 189 Ky. 579.
We, however, deem it proper to add that, as the judgment in this case must be reversed because of the error pointed out in instruction 4, on another trial such statements as those referred to, whether made by the Commonwealth attorney or the opposing counsel, should not be indulged in or allowed.
Because of the error in instruction 4 the judgment is reversed as to each appellant and cause remanded for another trial, not inconsistent with the opinion.