133 Ky. 532 | Ky. Ct. App. | 1909
Reversed.
The appellant, Jonas Smith, was indicted in the court below for the murder of his father, Amos Smith. He was brought to trial within four days of the return of the indictment, by verdict of the jury declared guilty as charged, and given the death penalty. Of that verdict, the judgment entered thereon, and the refusal of the circuit court to grant him a new trial he complains; hence this appeal.
The facts leading to and connected with the homicide were few and simple. It appears' from the evidence that appellant and his father were negroes, the latter being an old man 70 years of age, and that both lived with a brother of the former and son of the latter in the city of Paducah. The evidence showed appellant to have been a violent and reckless man, and that he had served a term in the penitentiary, but that he and his father had always been on good terms. It was also shown by the evidence that appellant and one John Polk, also a negro, were enemies; that shortly before the killing of Amos Smith appellant had threatened to kill Polk; and that on'the morning of the day of the homicide appellant purchased a number, of gun cartridges. It was further shown by the evidence that appellant, about 7 ,p. m. of that day, met John Polk on the street near his home, which was close to that of appellant, and with a shotgun attempted to shoot Mm, but that he was prevented from doing so by the act of Polk in grabbing the gun and calling for help; that the father and two brothers of Polk, hearing the cries, came-to his rescue, and assisted him in holding or trying to take the gun from appellant. At that juncture appellant’s father, Amos
Although numerous grounds were urged for a new trial, but two of them impress us as being worthy of consideration. These are: (1) the failure of the circuit court to grant the continuance asked by appellant before the beginning of the trial; (2) its alleged failure to properly instruct the jury.
When the indictment was returned, the court informed appellant that the case ought to be disposed of at that term, and ordered that it be set for trial four days later. Being then advised by appellant that he had not secured counsel and was 'without means to employ one, the court appointed a member of the bar present to defend him. The counsel named accepted the appointment, and, after a hasty conference with appellant, at once procured and placed in the hands of the' sheriff subpoenas for certain wit
■' "We are also satisfied that the jury-were not instructed as to all the law of the case. Instruction No. 1 was properly given, for'it correctly advised the jury of the law in respect to the crime of murder, and told them iñ what state, of case thej^ would be authorized to find appellant guilty of that crime, and what in that event should be his punishment. We can not, however, approve instructions 2 and 3 as given by the lower court. They fall short of an accurate statement of the law as to voluntary and involuntary manslaughter, and altogether failed to submit to the jury the question of whether the killing of deceased resulted from sudden heat and passion on the part of appellant excited by the interference of the former in trying to wrest from him the gun to prevent the shooting of Polk. “It is essential to the commission of voluntary manslaughter that the homicide should have been willfully and intentionally
Although the jury may believe, from the evidence beyond a reasonable doubt that the defendant shot and killed deceased with a gun, loaded as in-instruction No. .1 described, if they believe from the evidence that he committed tire act without previous malice, but shall believe from' the evidence beyond a reasonable doubt that such shooting and killing was unlawfully and willfully done by defendant in a sudden affray or in sudden heat and passion and with the felonious intent to kill deceased, or shall believe from the evidence beyond a reasonable cloirbt that the shooting and killing of deceased, if done by defendant, was the direct and natural, though unintentional, result of
If, however, they should believe from the evidence beyond a reasonable doubt that defendant shot and killed deceased with a gun, and that such shooting and death of deceased resulted from the unintentional and careless discharge of the gun by him in doing and unlawful act, such as struggling with deceased to retain the gun for the purpose of shooting John Polk, if he was so struggling for the possession ,of the gun for such purpose, when deceased was trying to prevent him from shooting said Polk, if he was so trying, they should in that event find defendant guilty of involuntary manslaughter, and fix his punishment at a fine in any amount, or imprisonment in jail any length of time in the discretion of the jury. If the jury believe from the evidence that the killing of deceased by defendant was not murder, voluntary or involuntary manslaughter, as defined in the instructions, but was unintentional and accidental they should acquit him.
In addition to instruction No. 1, and those herein directed to be given, the circuit court will again give the instructions numbered 4 and 5. The record fails to disclose any error in the admission or rejection of testimony.
On account of the errors indicated, the judgment is reversed, and cause remanded for a new trial consitent with this opinion.