124 Ky. 32 | Ky. Ct. App. | 1906
. Opinion of the Court by
Reversing.
The appellant, R. Flem Stevens, was indicted and tried in the Ohio circuit court for the murder of W. L. G-rawbarger. The jury by their verdict found him guilty of voluntary manslaughter, and fixed his punishment at two years’ confinement in the penitentiary. Appellant was refused a new trial in the lower court, and now asks of this court a reversal of the judgment appealed from.
Appellant, at the time of the homicide, was marshal of the town of McHenry, and having been- sent for by a barber to remove the deceased from the vicinity
It is insisted for appellant that the trial court erred in refusing to allow him to prove by certain witnesses,
It is also complained that the trial court was guilty of misconduct during the trial in that he permitted the widow of deceased who sat in the courtroom during the taking of testimony, to weep in the presence of- the jury, and cry out at appellant, saying: “Plena Stevens, why did you not kill me or my sweet baby, instead of my husband, who died with' a smile on his face?” This outbreak on the part of Mrs. Grawbarger was nothing more than an uncontrollable manifestation of her grief, which could not have been anticipated by the court, or the officers of the court, then present. Moreover, it is admitted by counsel that she was quickly required by the court to withdraw from the courtroom. The episode, though ill-timed and improper, was such as frequently occurs, and it could not have been prevented by the court except by an order made at the beginning of the trial refusing the widow the right to enter or remain in the courtroom during its progress, which would have been an unusual, as well as a harsh and unjustifiable, requirement that appellant himself did not care to demand. It does not appear from the record that he or his counsel objected to the conduct or statement of Mrs. Grawbarger, or that they excepted to the
We are also- without power to consider appellant’s complaint as to the alleged misconduct of the acting commonwealth's attorney in the closing argument to the jury, as it does not appear from the record that the alleged improper statement made by him was objected to at the time, that the court w’as asked to admonish the jury not to consider it, or that its failure to do so- was excepted to by appellant. It was not sufficient to present the matter to the lower court for the first time in the motion and grounds for a new trial.
Appellant’s objection to the instructions of the court made at the time they were given require us to consider and pass upon them. Their number and length make it impracticable to copy them in the opinion. Eight of them, though in some respects inaptly expressed, we think substantially correct,, but the one marked “No. 5” we are unable to approve. It is as follows: “The court further instructs the jury that, as a matter of law, the defendant being a peace officer in the town of McHenry at the time of the killing of the deceased, Grawbarger, he had the right to arrest the deceased, if he was drunk or committing a breach of the peace in his presence, without any warrant, and had the right to take deceased before the police judge of the town of McHenry to be dealt with according to law. And if the said Gtawbarger, after having been arrested by the defendant, refused to submit to said arrest, or to remain in the defendant Stevens ’ control, as marshal, then the defendant had the right to use reasonable force to compel said Grawbarger to submit to his authority and to continue in his control.
In the case of Head v. Martin, 85 Ky., 482, 9 Ky. Law Rep., 45, 3 S. W., 622, the single question presented for decision was whether a peace officer, in arresting the defendant in a bastardy warrant, had the right to shoot and kill him while fleeing. In the opinion it is said: “It is attempted to draw a distinction between a case where one is attempting to avoid arrest, and where- one is- endeavoring to escape after arrest. If, however, the offender is in flight, and is not at the time resisting the officer, then the law is the same, whether he be fleeing to avoid arrest, or to escape from custody. * * * The appellee, Martin, had, in fact, been arrested by the appellant, Head, as deputy sheriff, and was shot by the latter when fleeing from his custody, but the fact that an
for his protection.” Roberson’s Criminal Law, sections 153, 154; Dilger v. Commonwealth, 88 Ky., 550, 11 Ky. Law Rep., 550, 11 S. W., 651; Doolin v. Commonwealth, 95 Ky., 29, 23 S. W., 663; 15 Ky. Law Rep., 408; Bowman v. Commonwealth, 96 Ky., 8, 27 S. W., 870, 16 Ky. Law Rep., 186; Fleetwood v. Com
The instruction which the court is directed to give,' on a retrial of the case, in lieu of No. 5, should be expressed as follows: “The court instructs the jury that, if they believe from the evidence deceased was drunk and disorderly in the presence of appellant, the latter, as marshal of the town of McHenry, had the right to arrest him without a warrant, and to hold him in custody until the presence of the police judge could be secured to make some disposition of the ease, and, if they further believe from the evidence that, after the arrest of deceased, 'and while appellant had him in custody, deceased attempted by force or violence to effect his release from appellant’s cus
. On account of the error committed by the trial court in giving instruction No. 5 to the jury, the judgment is reversed, and the case • remanded for a new trial consistent with the opinion.
Petition for rehearing by appellee overruled.