116 Ky. 617 | Ky. Ct. App. | 1903
Opinion of the court by
Affirming.
This is an appeal by William Rowsey from a judgment of the Boyle Circuit Court sentencing him to twenty-one years’ confinement in tbe penitentiary for killing Sam Mastin by shooting him with a pistol. The testimony discloses that the accused, Rowsey, and the deceased, Mastin, had attended Sunday school at a schoolhouse in Boyle codnty, and that, after the Sunday school was over, they, in company with several -other young- persons of both sexes, were walking up the public highway towards their homes, laughing and talking; that the deceased, Mastin, was walking by the side of Eliza Johnson, carrying her. Bible, and the accused was walking immediately behind them, with Jack Johnson, a brother of Eliza Johnson, and Jess Mastin, a cousin of the deceased; that, after the party had walked some distance, Rowsey, who appeared to have been drinking, remarked to
The first ground relied on for reversal is “that the verdict of the jury is flagrantly against the law and evidence.” In response to this contention, it is enough to say that it has been often held that, under sections 271, 340, Code Criminal Practice, this court has no power to reverse a judgment of conviction in a criminal case upon the ground-that there was not sufficient evidence to sustain the verdict, but is restricted to the single inquiry whether there was any evidence before the jury conducing to. show the guilt of the accused. We think it sufficiently appears from
The next ground relied on is that the trial court erred in instructing -the jury as to the offense of murder, it being contended that there was absolutely no proof of malice; and in connection with this alleged error it is insisted that the trial court erred in permitting Jess Mastín to testify to the alleged conversation with the accused in regard to going with Eliza Johnson on the Saturday night preceding the killing, and in not excluding the testimony of Ella iGlasscock and her father to the effect that Rowsey said on his way to the Sunday school “that she had better take a knife to cut away the smoke,” upon the ground that there- is no proof that in either conversation the defendant had any reference to Sam Mastín. There is no direct testimony of any previous bad feeling'between the deceased and the accused. The only suggestion in the testimony as to a probable motive for hostility on the part of the defendant towards the deceased previous to the homicide is that of Jess Mastín, and this testimony is competent as throwing light on the defendant’s motive for his conduct immediately preceding and at the time of the shooting. Jealousy is among the strongest and most uncontrollable of the human passions, and the facts on which it rests are always competent, in the absence of any other assignable motive, to show whether it was the cause of the accused’s act. See Wharton on Criminal Evidence, section 784; McCue v. Commonwealth, 78 Pa., 185; 21 Am. Rep., 7. And the testimony of the Glasscocks, father and daughter, we think, is clearly competent to show previous malice. When we connect the threats testified to by these witnesses with the offensive and overbearing language and conduct of the defend
Counsel for the defendant also complain of instruction No. 4, on two grounds: (1) That it leaves out of view the defendant’s right to shoot, based upon apparent danger; (2) and that it makes the jury the final judges as to whether the" defendant believed, and had reasonable grounds to believe,, that the means resorted to by him. to protect himself from' impending danger were necessary at the time he fired the fatal shot. Whether there was actual necessity for resort to the-means used by the accused was a question to be decided by him at the time, and if he in good faith believed, and had reasonable grounds for believing, that his only safety was to shoot the defendant, he was excusable. But whether this belief actually existed in his mind at the time of the shooting, and whether there were reasonable grounds for this belief, is always a question for the determination of the jury. See Meridith v. Commonwealth, 57 Ky., 49. The instruction is drawn with special application to the facts deposed to by the defendant as excusing his action. It tells the jury “that” if Mastin began the fight by first shooting the defendant, and that the defendant *had reasonable grounds to believe, and did believe, from the acts and conduct of Mastin, that he was in immediate danger of suffering the loss of his life or great bodily harm at the hands of Mastin, and that he shot Mastin to avert that danger, that he was entitled, to an ■acquittal.” The defendant testified that Mastin began the fight by shooting first, and that he only shot because he be
The appellant also complains that the court erred in admitting the djdng declaration of the deceased, for two reasons: (1) Because the testimony did not sufficiently show that the deceased had given up all hope of recovery; (2) because it was not limited to the immediate circumstances surrounding and connected with the shooting. The statement of deceased was written out by the county attorney of Boyle county, and two witnesses who were present at the time it was prepared and signed testify that Mastín said at the time that he had no hope of recovery, that he was preparing to meet his Maker. Taken in connection with the desperate character of his wounds, we think these declarations were sufficient evidence that he was conscious of his approaching
Upon the whole case, after a careful reading of the testimony, and consideration of the arguments of counsel, we have reached the conclusion that we would not he justified in disturbing the judgment of the lower court. Judgment affirmed.