189 Ky. 402 | Ky. Ct. App. | 1920
Opinion op the Court by
Affirming.
The appellants, Angeline Stacey and Shade Stacey, appeal from the judgment of the Perry circuit court wherein they were found, by the verdict of the jury and adjudged by the court to be guilty of the crime of wilful murder which was committed, as alleged, by the killing of one Harrison Banks. The indictment accused the appellants, together with one Dewey Stacey, with being jointly guilty of the crime. It contained two counts, in the first of which Angeline, Shade and Dewey Stacey were accused of having conspired for the purpose of killing Banks, and in pursuance of the conspiracy they jointly shot and killed him. In the second count, the manner in which they were accused of the murder was that Shade Stacey shot and killed Banks, and that Angeline and
First. The court did not instruct the jury upon the entire law of the case.
Second. The court erred in the instructions given to the jury to the prejudice of the substantial rights of Angeline Stacey.
Third. The court erred in admitting incompetent evidence against them over their objection..
Fourth. The court erred in excluding competent evidence in their behalf, and in failing to admonish the jury as to the purpose for which it was permitted to consider certain evidence.
These criticisms of the fairness of the trial will be considered in their, order, but that an understanding may be . had of the questions to be determined, a condensed statement of the facts, which the evidence conduced to prove, will be given. Angeline Stacey is the mother of Shade ■ and Dewey, each of whom is from nineteen to twenty years' of age. In the spring of the year, 1919, Angeline, with her sons, was living in a coal mining camp where they became acquainted with the deceased, Banks, who owned and resided upon a farm. Angeline desiring to move from the camp applied to Banks for the rent of land for cultivation, and he answered that he could furnish her the land but there was not a dwelling house upon it in which she could reside, but she replied that she had a tent and that she would live in that. Shortly thereafter the tent was moved upon the premises of Banks, and the Staceys were permitted to cultivate about three acres of land in a field called the “orchard” and probably other small pieces of land. They cleaned up the land in the “orchard” and cultivated it in ¡corn, assisted to some extent by Banks and his two nephews, who resided with him, during the following season. In the following autumn, an unfriendly state of feeling arose between the Staceys and Banks. The latter accused Dewey and Shade of having invaded his watermelon “patch” and with having destroyed and stolen his melons, and they were confined in jail for a time at the instigation of Banks, but. it does not clearly appear whether it was
(a) The appellants insist that the court did not instruct the jury as to the entire law of the case, in that it erroneously failed to give an instruction defining' the rights of the appellants upon the hypothesis that they were the owners of the corn and Banks had no interest in it, to the effect, that the defendants had a right to use whatever force was necessary in defense of their possession of the corn, and prevent Banks from gathering and taking it away.
It is a well settled principle of our common law that an owner in possession, of either real or personal property has a right to use such means as in the exercise of a reasonable judgment are necessary to protect his premises from forcible invasion, and to prevent a forcible attempt to divest him of the possession of his personal property, and in defense of his rights as to such matters an assault and battery upon a trespasser, will be justified, if necessary to the protection of his rights, but in no case is the taking of life or the infliction of a great bodily harm allowable in the defense of a possession, where the invasion is made without actual force, or in the prevention of a mere trespass. Somewhat greater liberty of action is allowable where a trespass is made with actual force and with the intent to kill the owner, or to do him a great bodily injury if he resists, but, as against a trespasser who makes an invasion not accompanied with actual force, although forcible in law, as well as the trespasser with actual force and with the intent to kill or do great bodily harm, if resisted, the right to take his life or to wound him does not arise unless, he assaults the owner, in the first instance, and there are reasonable grounds to believe that it is necessary to kill
In Chapman v. Commonwealth, 12 K. L. R. 704, wherein a dispute over the ownership and possession of a keg of paint resulted in a homicide, it was said: “The owner can at most, only use sufficient force to prevent the trespass or the carrying away of his property; and this right does not go so far as to authorize the taking. of life or the infliction of great bodily injury. He is not allowed to sacrifice human life to retain the -possession. It is only when the owner in attempting to prevent the trespass or the carrying away of his property, is assaulted by the wrongdoer, that he may wound if necessary in the defense of his person.”
In Utterback v. Com., 105 Ky. 723, where a controversy was over the right of a landowner to plow up a road over his land, which had been used theretofore for a long time as a passway by Utterback, the court said: “Life cannot be taken to prevent a mere trespass and on a trial for homicide the guilt or innocence of the defendant does not depend upon whether he was right or wrong in the controversy about the land. Life in cases like this can only be taken in self defense or in the necessary defense of others.”
The doctrines enunciated above should nbt be confused with the rule which is applicable when one takes life or does great bodily harm to another, when defending his dwelling house against forcible trespass.
In the instant case, if the evidence for the appellants is to be believed to the exclusion of that offered on the part of the Commonwealth, the acts of the deceased did not arise above the dignity of a mere trespass upon the
(b) Objection is made to the first instruction given upon the ground that .there was no evidence upon which to base it, and was in any event erroneous as to the appellant,- Angeline. As to the first objection there was evidence which conduced to prove that the appellants and Dewey Stacey had a strong animosity toward deceased, and a desire to be revenged; they had on several occasions threatened to take his life; on the day before he' was killed, he had received a message from Angeline which induced him to attempt to gather the corn and caused him to go to the place of the homicide; the appellants and Dewey immediately appeared, Angeline with a drawn pistol, and he was at once assaulted with stones and with the pistol and after two ineffective shots, was then shot and killed. While under all the circumstances the proof of a conspiracy was not very convincing, -there was enough to make it a question for the jury, and its submission was therefore not prejudicial. With regard to the second objection to the instruction, it advised the jury that if the three who were charged in the indictment, or any two of them, including Shade Stacey, had entered into a conspiracy to murder the deceased, and in pursuance of the conspiracy, and while- it existed Shade
(c) Two witnesses were permitted to testify, over the objections of .appellants, that previous to.the homicide, on two occassions, when Shade and Dewey were together, but, not in the presence of Angeline, one of them declared their purpose to kill the deceased, and while the witnesses deposed that it was either Dewey or Shade who made the declaration, they were unable to state which it was, because of inability to distinguish the one from the other: It is contended, that the evidence should not have been admitted at all, but the declarations, if not made by ■Shade, were made by Dewey, in his presence, to the effect, that they purposed to kill the deceased, and with Shade’s apparent approval and sanction, and Shade was one of the accused upon trial. • The evidence proved, prima-facie, a conspiracy between- the three to commit the crime, and according t,o the evidence for the Commonwealth all three were present, when the conspiracy was consummated. •Hence, the declaration, if made by 'Dewey was competent evidence- against the other two, although he was not upon trial. Angeline, however, not being present, when the declarations were- made, the proof of them was not competent proof, in this case, of her guilt, unless a conspiracy existed at the time between her and the declarant to commit the crime and the court should have instructed the -jury, to disregard the declarations as evidence-against Angeline, unless a conspiracy-then existed between her and the declarant to commit the crime, but the failure to do -so, was not prejudicial, when the evidence proved, that she had frequently threatened the' life of Banks herself ; that all three were present when Banks was killed;
(d) It was not error to refuse the appellants the right to introduce evidence of the bad moral character of the deceased. Such evidence could not illustrate any issue in the case. It is permitted for the purpose of impeaching a witness who has testified and to enable the jury to determine the weight which should be given to the testimony of such a witness, but as1 no dying declaration of the deceased was offered in the evidence, he was in no wise a witness.
(e) The appellants, Angeline and Shade, testified in their own behalf upon the trial, and Dewey Stacey testified as a witness for them. ’ The Commonwealth’s attorney then introduced evidence by several witnesses which tended to prove that the characters of these parties for good morals were bad. The appellants objected to the testimony of some of these witnesses, and to others of them they did not object, but they now insist that the court erred to the prejudice of their substantial rights, in failing to limit the effect to be given to the testimony to the extent that it affect the credibility of Angeline, Shade and Dewey as witnesses. The appellants, however, did not ask the court in any instance to so admonish the jury. If requested, or its attention had been called to the propriety and necessity of doing so, the court would doubtless have given the proper admonition. When witnesses have testified, as in this case, giving evidence impeaching the moral character of the witnesses, the failure of the court to limit the effect to what it might have upon the credibility of the witnesses, whose characters were impeached, is not a reversible error, unless by motion, exception or objection made at the time, by the party complaining, calls the attention of the court to the necessity of such an admonition, and such failure is not even then a reversible error, unless it appears from the entire record that the substantial rights of .the party accused have been prejudiced by the failure. Hayes v. Com., 171 Ky. 291; Johnson v. Com., 170 Ky. 766; Fueston v. Comth., 91 Ky. 230; Newman v. Comth. 28 K. L. R. 81; Renaker v. Comth., 172 Ky. 714; Ocksner v. Comth., 128 Ky. 761; Wright v. Comth., 155 Ky. 750. The evidence complained of was entirely competent, and we must assume that the
The judgment is therefore affirmed.