138 Ky. 558 | Ky. Ct. App. | 1910
Opinion op the Court by
Reversing.
Charley Tibbs was indicted and tried for murder. The jury found him guilty, and fixed his punishment at confinement in the penitentiary for life. From the judgment of conviction, he prosecutes this appeal.
The facts in brief are as follows: Appellant was a blacksmith in the employ of the Ralston Coal Company, a corporation engaged in business near the Tennessee line. He started from that company’s place of business for Tazwell, Tenn. In going there it was necessary for him to pass through the city of Middlesborough and remain overnight. Early in the evening preceding the morning when the deceased, Charlie Haynes, was wounded, appellant met deceas
Shortly after the deceased was cut, which occurred about 4 o’clock on Sunday morning, he went into the house kept by Nellie Carroll. There the wound was washed and tied up with an old rag. Dr. Evans, who passed the Carroll house about 7 o ’clock, was called in. He examined, the wound, and did not consider it fatal. Deceased remained at the Carroll house all day and until the next morning. He then went to the station, about a half mile distant, unattended. From there he took a train to Tazwell, Tenn. During all this time there was no one with him. After reaching his home at Tazwell, a local physician was called in, and the wound again dressed. A member of the faculty of Tennessee Medical College, of Knoxville, was sent for, and he came and operated upon deceased. According to Ms testimony, the skull was fractured. The deceased gradually grew worse, and died a few days later from blood poison. According'to one of the physicians, who testified for appellant, the skull was not fractured.
In view of the fact that we have concluded that the judgment must be reversed for other reasons, we deem it unnecessary to determine whether or not the court erred in refusing to grant appellant a continuance. The other two errors relied upon are the admission of the dying declarations of the deceased and the failure of the court to permit appellant to introduce evidence to the effect that the wound was not of itself dangerous — that is, caluculated to endanger or destroy life — and that the deceased died from the
We also conclude that the court erred in refusing to permit appellant to show, if he could, that the wound was not calculated to endanger or destroy life, and that deceased died solely from improper treatment. The rule in this state is contained in the following language from the case of Bush v. Commonwealth, 78 Ky. 268: “As said in Commonwealth v. Hackett, 2 Allen [Mass.] 141, the rule of the common law would seem to be that if the wound was a dangerous wound — that is, calculated to endanger or destroy life — and death ensued therefrom, it is sufficient proof of murder or manslaughter, and that
The court will designate the above instruction No. 3. In lieu of instruction No. 3, as given, it will further instruct the jury that manslaughter is a lesser offense than murder, malicious wounding is a lesser
Complaint is made of. the fact that the court submitted to the jury the question of appellant’s insanity. Some evidence was admitted on the trial tending to 'show that appellant was a somnambulist, and while in this state was without self-control, and committed acts of which he had no recollection. We fail to see how these facts would constitute any defense other than that embraced in a plea of insanity. Certainly the appellant cannot complain that he was given the benefit of such defense. ,
Judgment reversed and cause remanded for a new trial consistent with this opinion.