Profitt v. CommonwealthProfitt v. Commonwealth
- Reporters:
- Before:
- Sims
Appellant, Alvin Profitt, was convicted of feloniously shooting at Earl Craft without wounding him and his punishment was fixed at confinement in the penitentiary for two years.
Earl Craft, a 17 year old boy, who lived with his parents on a farm which adjoined appellant’s, testified that on an afternoon in March 1953, he fired twice at a fox with a single-shot .22 caliber rifle, missed the animal and the shots went into the side of a hill. Thereupon, appellant began firing at him with a repeating .22 caliber rifle from a distance of about 500 yards: Earl ran behind a tree for shelter and two of appellant’s shots hit this‘tree. Earl screamed to his mother that he was being shot at and ran to his home nearby.
Appellant, a man 49 years of age and a former teacher, did not deny shooting at the boy but testified he fired in self-defense and did not attempt to hit Earl, but sought only to frighten him. According to appellant, who was corroborated by his wife and sister, Earl fired several shots at appellant, one of which grazed his shoulder, and it was not until then that appellant returned the fire. ■ But he emphatically testified he did not try to hit the lad and only shot to scare him. Earl denied shooting at appellant.
The evidence is conflicting as to how many shots were fired. Each claimed to have fired twice, but there was testimony that there were some 12 or 15 shots. According to appellant, Earl was only 100 or 115 yards from him and he could have hit the boy had he shot to kill him. Appellant testified, “He (Earl) had his gun up to shoot and I got the shots first to bluff him out. * * * I tried to hit that tree so as to kind of bluff him and make him leave, scare him out without having blood against me”. At another point appellant testified, “I got my gun and turned back to fire because I thought my life and my children and my wife’s lives was at stake”. While appellant testified he and the Crafts were on good terms, which fact the Crafts denied, appellant admitted he accused Earl’s father of stealing some wire.
While the indictment charged appellant with “shooting at without wounding another with intent to kill”, the italicized words are purely surplusage as
True, there are cases under
This case differs from Johnson v. Com., 313 Ky. 17, 230 S.W.2d 69, where the accused shot into some bushes without shooting at anybody. We there held accused was entitled to an instruction on the reckless use of firearms. Also it differs from Sumpter v. Com., Ky., 251 S.W.2d 852, where a woman, without aiming at anybody, shot out of an upstairs window to frighten what she thought was a burglar and wounded a boy standing below on the sidewalk. We there held an instruction should have been given on the reckless use of firearms. Neither Johnson nor Sumpter claimed to have shot in self-defense or directly at a person “with the intent to only frighten but not to hit or kill”, as did appellant Profitt.
The instant case is easily distinguished from Crabtree v. Com., 227 Ky. 65, 11 S.W.2d 1000, and Hall v. Com., 219 Ky. 446, 293 S.W. 961. In each it was held to be reversible error not to instruct on the reckless use of a deadly weapon. Crabtree was so drunk he entered his house “on all fours”. He did not shoot at his wife but at a lamp and relied upon the Hall case. We held Crabtree was entitled to an instruction under K.S. § 1308 (now
Clearly, the case at bar is different from the two cases just mentioned because neither Crabtree nor Hall shot at anybody and were just shooting recklessly. Here, Profitt was shooting at Earl in what he claimed to be self-defense, although he testified he was not trying to hit the boy, but was shooting just to “bluff him out”. Then too, appellant was sober and a man of mature years with a good background. Instead of shooting recklessly, he deliberately shot toward the boy and twice hit a tree behind which Earl had taken refuge. The crime denounced in
Our books are full of cases like the Crab-tree and Hall opinions, where persons who were drunk or who were pranking and had no hard feelings against their victim, or intended victim, recklessly shot him and we said an instruction under what is now
But we have found no case where bad feeling existed and deliberate aim was’ taken in what was claimed to be self-defense, where this court said the accused was entitled to an instruction on the reckless use of a firearm. It is elementary that the instruction in every case must depend upon its own peculiar facts and the issues raised by those facts. McKinney v. Com., 284 Ky. 16, 143 S.W.2d 745, 748. The court properly refused an instruction on the reckless use of firearms.
The judgment is affirmed.