78 Ky. 102 | Ky. Ct. App. | 1879
delivered the opinion of the court.
From the evidence in this case, the jury were authorized to find that the deceased, Bryant, had repeatedly threatened to take the life of appellant, had lain in wait on two occasions or more, armed with a rifle gun, for the purpose of taking the life of appellant, and that he once shot at appellant for that purpose. At the time of the killing appellant was return
On trial, appellant was sentenced to the penitentiary for four years.
The complaint on appeal is, that the court gave improper instructions, and refused to give others asked for by appellant. Among those given and complained of is the following, which was asked for by appellant but modified by the court by adding the words “and there” after the word “then,” and by striking out the words “ but had the right to pursue his adversary and to slay him.” As modified, it reads: “The Court instructs the jury, that if they believe from the evidence, and from all the facts and circumstances proven in the 'case, that the accused belipved, and had reasonable grounds to believe, that his life was in danger from deceased, or that he was in danger of great bodily harm from deceased,, whenever and wherever he might meet him, and that, on the occasion when the accused met and killed the deceased (if he did kill him), he believed, and had reasonable grounds to believe, such danger was then and there impending, and that
The view insisted upon by counsel is, that if the danger to appellant was impending, in the sense that he was constantly in danger of assassination, that appellant had the right to take the life of Bryant, although he may have believed that, at that time and that place, Bryant did not intend to carry his purpose of killing into execution. It is difficult to formulate an instruction upon this point that will not be liable to misconstruction by the jury; but, after careful consideration, we conclude that the statement of the law, as found in Kennedy v. The Commonwealth, 14 Bush, 352, is in harmony with the best considered cases, and should be adhered to, and that, as the instruction is a substantial compliance with it, the court did not err in giving it as modified.
In the Kennedy case it is said: “Threats, menaces, assaults, lying in wait, carrying arms, the character of the deceased for violence or lawlessness, the circumstances of the meeting, and any other fact tending to show that the slayer was in peril at the time of .the homicide, or that he had reasonable grounds upon which to believe he was in such peril, may all be given in evidence for the purpose of showing that there were grounds to believe he was then, in danger; but if, notwithstanding all these things, he had no reasonable ground for believing he was then in danger, they will not excuse him on the ground of self-defense, although they may have justified him in believing he would be in such danger at some future time. ”
The fact that no person witnessed . the whole of what occurred between appellant and Bryant at the time of the
Judgment affirmed.