142 Ky. 347 | Ky. Ct. App. | 1911
Opinion op the Court by
Affirming.
On September 26th, 1910, appellant Thurman shot and killed Sam Johnson. -Thurman was indicted the next day for wilful murder, and his trial set for October 5th. When the case was called on October 6th it was reassigned to October 19th for trial, and it was then tried. The jury found appellant guilty and fixed his punishment at confinement in the penitentiary for life.
The tragedy occurred in a gambling house conducted by the deceased in Middlesboro, on a Sunday about midnight or shortly thereafter. Johnson and Thurman, with several .other friends of Johnson, had assembled in the latter’s room for the purpose of gambling. They had been gambling several hours, and Thurman, evidently being in bad humor by reason of his losses, tore the cards and threw them on the floor. The cards belonged to Johnson, and he remonstrated with Thurman, at the same time calling him a vile name; and according to some of the witnesses Johnson started towards Thurman in a menacing manner. Thurman says he pushed Johnson back with his hand to keep him off of him, while some of the other witnesses sajr Thurman slapped Johnson in the face. Thurman attempted to leave the room, but, in his haste, he stumbled and fell to the floor; whereupon Johnson, who was pursuing him, cut Thurman severely in the back. Friends immediately interfered, one of them holding Johnson in the room, while others carried Thurman down the steps into the yard. Thurman’s pistol had been lying upon a bed in the room during the game, and when the fight occurred Alex-'
The court instructed the jury upon the law as to murder, voluntary manslaughter, and the right of self-defense. The court also defined malice, and gave . the usual instruction as to reasonable doubt.' No objection is taken to the instructions that were given. It is insisted however, that the judgment should be reversed upon any one of three grounds, namely (1) that the court erred in refusing to continue the case on the showing made by appellant in Ms affidavit; (2) that the court should have discharged the jury for the misconduct of a bystander who talked with several of the jurors during the trial; and (IN that the court did not give all the law of the case.
When the case was called for- trial on October 17th the appellant moved the court for a continuance, and, in support of Ms motion, filed Ms own affidavit to the effect that be had been confined in jail ever since the killing of Johnson and that for that reason he had had
During the progress of the trial, Sam Waldon, a colored man, came into the court room before the session of the court had opened, but while the jury was in the box, the judge on the bench, and the attorneys for the appellant and appellee were present, and began to shake hands with the jurors, and to say to each, as he shook hands with him, “give him the fair deal, give him justice.” Before Waldon had shaken hands with all of the jurors, he was admonished by the court, in the presence of the jury, and stopped by the sheriff from further communication with the jurors; whereupon Waldon took his
In the second instruction the jury were told that, if the defendant “ in sudden heat and passion or in sudden affray, and without previous malice, and not in Ms necessary, or reasonably apparent necessary self-defense, so shot and wounded Sam Johnson, as that he then and there died thereby, then the defendant is gnilty of voluntary manslaughter, included in the indictment herein, and you ought to so find.It is insisted that the court should have enlarged this instruction by incorporating in it the idea that, if Thurman acted upon some provocation which was reasonably calculated to excite his passions beyond the power of self control, • they should not find him guilty of murder, but should find him guilty of voluntary manslaughter, as provided in said instruction. We are of opinion that the instruction as given covered the case under the evidence. Thurman had left the house where the difficulty started; had gone downstairs into the yard where he had another altercation with Alexander over the pistol, and had then gone back upstairs and renewed the difficulty with Johnson. In giving the instruction covering the effect of appellant’s acts if done in sudden heat and passion, and without previous malice, and in his necessary self-defense, we are of opinion that his case was fully and fairly presented to the jury.
The judgment is affirmed.