140 Ky. 736 | Ky. Ct. App. | 1910
Opinion op the Court by
Eeversing.
Appellant, Lee Eeed, was convicted of the crime of manslaughter and’his punishment fixed at confinement in the penitentiary for a term of three years. From the judgment of conviction he appeals. .
The facts appearing from the record are as follows: Appellant, together with Bill McCullom, John D. Baker, Bob Baker and another party were together a greater portion of the day of March 18th, 1910. For a while •they were just outside the town*limits of Corbin having, a shooting match. Just before 6 o ’clock they were on the sidewalk in front of White’s restaurant, which is located diagonally across the street from the depot building. About 6 o’clock the deceased, James Cain, passed along the concrete pavement by the side of Grover’s store. When he reached this store, he turned and passed in front of it and the Manhattan restaurant. These two buildings are directly across the street from the depot. He then passed across the street and proceeded along the pavement adjoining the depot building towards tbe baggage room. He carried with him a valise. When he got near the baggage room be met appellant, McCullom and the two Bakers. Perhaps a fifth man was along, but the evidence upon this point is not clear. Appellant and McCullom each had a pistol in his right hand. The deceased and appellant and McCullom engaged in a quarrel. They were then seen to turn and start back towards the main entrance of the general waiting room, which is located a few feet above the sidewalk and is reached by ascending about a dozen steps. Eeed and McCullom were each seen to strike Cain. The latter had the grip in his
According to the evidence for the defense, when appellant and McCullom met Cain he said, “Hello; I see you damn boot healers are back in town,” or “what are you damn boot healers doing here,” or something- like that. McCullom said, “Yes, if you are talking that at me, we are back, and what is that to you?” Cain replied, “Anything you want,, and any way you want it.” McCullom said, “Don’t talk so damn ‘skeery.’ ” About
Besides other instructions which are not complained of and which are not subject to criticism, the court gave the following instruction on self-defense and the defense of another:
“No. 4. If you shall believe from the evidence that at the time the defendant shot at and wounded James Cain so as that he died thereby, if he did so, he believed, and had reasonable grounds to believe, that he, or William McCullom, or either of them, was then and there in danger of death or the infliction of some great bodily harm at the hands of said Cain, and that it was necessary, or was believed by the defendant, in' the exercise of reasonable judgment to be necessary to so shoot and wound the deceased in order to avert that danger, either toward himself or William McCullom, real, or to the defendant apparent, then you ought to acquit the defendant upon the ground of self-defense, or apparent necessity therefor, or the defense of another, or apparent necessity therefor, unless you shall believe from the evidence, beyond a reasonable doubt, that the defendant, Lee Reed, or the defendant Lee Reed, and William McCullom first began the difficulty and were the aggressor, or aggresors, by assaulting or striking said Cain, then you ought not to excuse the defendant on the ground, of self-defense, or the apparent necessity there
It is earnestly insisted that the court erred in qualifying appellant’s right of self-defense and his right to defend McCullom, and that such qualification is not applicable to the facts of this case. While there is some contrariety in the evidence as to what took place during the scuffle along the sidewalk as the parties approached the steps leading to the general waiting room, all the witnesses agree as to what took place between Reed, Mc-Cullom and Squire Early, and to the further fact that, after Squire Early’s approach, Cain proceeded up the steps and went into the general waiting room. The witnesses differ as to the time Cain was gone, but he was certainly gone long enough to put his valise down, open it, take therefrom the pistol, examine it, and return to the door. While Reed «md McCullom were not technically under arrest, it is perfectly apparent that they had both acquiesced in the arrangement suggested by Squire Early and had agreed to follow his directions in the matter. After Squire Early arrived neither Reed nor McCullom made any effort to shoot or do any bodily harm to Cain. All the evidence shows, then, that the.difficulty, so far as Reed and McCullom were concerned, was then at an end. When Cain walked up the steps and entered the general waiting room he had reached a place of safety. ITe was then and there in no danger at the hands of either Reed or McCullom. His place of business was on the other side of the building. It was not necessary for him to return by the door through which the shooting was done in order to take up his duties for the evening. Instead of proceeding on his way to the gate where it was his duty to be, he voluntarily left a place of safety
.As all the evidence shows that the first difficulty was at an end and that Eeed and McCullom had in good faith abandoned the difficulty and were not in any way seeking to do bodilv harm to Cain, we conclude that the court erred in qualifying the instruction in the manner complained of. On the next trial the court will give the instruction wiill out the qualification referred to. The court will also exclude from the consideration of the jury any evidence in recard to McCullom’s reputation for peace and quiet. The court will further see to it that neither the counsel for the accused nor the Commonwealth’s attorney is permitted to read to the jury any extracts from the Code, the statutes, or any other law book.
Judgmeut reversed and cause remanded for a new trial consistent with this opinion.