93 Ky. 318 | Ky. Ct. App. | 1892
DELIVERED THE OPINION OE THE COURT.
The deceased, James Bailey,-had on the same day of his own death killed a man named Minks, and was arrested and taken to Barboursville. But his examining trial being put off, he was given the right to employ a guard, and by the accommodating constable permitted to select the person to act as such, who was appellant Smith.
The prisoner and his guard, each being armed, the-former with a large and the latter a small pistol and shotgun, started from town without presence óf the constable, to go to the residence of the prisoner's father, about twelve miles distant, to return on day of the trial, or, for all the officers apparently cared, never.
On the way they mat one Green Hammond, who permitted the prisoner to riele with him on his mule, the-one he started from town on having been taken from him by the owner. When they, the prisoner., guard and Hammond, got within a short distance of the draw-bars-opening into his father’s farm, the first mentioned proposed to fire his pistol at a tree, but was dissuaded, because the mules might become frightened, though it was agreed he might shoot when they got to the draw-bars. Accordingly, upon arrival there, all dismounted, and the prisoner, now deceased, commenced shooting with the large pistol, ' not at a mark, as was suggested to him, but, as he said was preferable, “at the clouds,” and his guard, now appellant, followed his example. After two shots were fired by each of them, the deceased called for the small pistol, at the same time handing appellant the-large one, muzzle ■ foremost, back over his shoulder — whether the right or
The position of appellant at the time of the shooting was to the left of where the deceased stood and upon higher ground, about two feet.
If Hammond, the only other eye-witness besides appellant, testified truthfully, it does not seem to us at all probable the latter shot the deceased; for it was hardly possible for him, occupying the position he as well as Plammond testifies he did, to have shot the deceased in the place he was struck and given to the bullet the direction it took; nor is it natural or reasonable, if he had done so, that the •deceased would have with his last breath used words indicating he had himself done it, and that appellant was not to blame. Besides, the deceased having handed the large pistol to appellant, asking at the same time for the small one, which Hammond states he saw the latter in the act of giving to him, it is scarcely credible that as many as three shots were afterward fired with it by appellant instead of the deceased.
But there is testimony of statements subsequently made by appellant tending to show he, and not deceased, fired
The court gave an instruction applicable to a case of murder, for which appellant was indicted, the usual instruction as to manslaughter and also the following: “ If the jury shall believe from the evidence to the exclusion of a reasonable doubt that the deceased was under arrest and in charge of the defendant as a guard, then it was his duty not only to prevent an escape by deceased, but also, as far as he reasonably could, to protect deceased from violence; and if, while such relation of prisoner and guard existed, they shall believe from the evidence to the exclusion of a reasonable doubt that the defendant either carelessly or negligently in discharging firearms shot and killed said Bailey, they will find him guilty of manslaughter and fix his punishment at confinement in the penitentiary not less than one nor more than twenty-one years, even though they may believe that defendant did not intend to shoot deceased.”
The verdict of the jury reads thus: “ We of the jury agree and find the defendant Smith guilty of killing by the reckless handling of firearms, and fix his punishment two years in the State prispn.”
The jury seems not to have returned a verdict in terms of manslaughter, but undertook Jo describe, in their own language, the offense of which they concluded appellant was guilty, but to affix punishment provided by statute for the technical offense of manslaughter.
Undoubtedly an act may be so heedless and incautious as to necessarily be deemed wanton and unlawful, though there may not be any express intent to do mischief; and
Judgment reversed for new trial.