| Ky. Ct. App. | Feb 17, 1899
delivered the opinion of the court.
The appellant, Hezekiah Utterback, was indicted in the Bourbon Circuit Court for the murder of Dudley Clinkenbeard, and having been found guilty of manslaughter, and his punishment fixed at five years in the penitentiary, he seeks by this appeal a reversal of the judgment against him.
The first point made is that he was not arraigned, and did not waive arraignment. The facts about this are that after the jury were sworn and some testimony heard, it was remembered that the indictment had not been read, and no plea entered for the defendant. The Commonwealth’s attorney thereupon, by leave of the court, and in the presence of the defendant and his counsel, read the indictment to the jury, and after reading it, turned towards the defendant and his attorneys, and inquired what his plea was, to which one of the defendant’s attorneys responded, “Not guilty;” and thereupon the examination of the witnesses was resumed, the attorneys consenting that the testimony that had been given should be considered without being reintroduced. . The Criminal Code of Practice (sections 154 and 155) provides: “An arraignment is a reading of the indictment by the clerk to the defendant and asking him if he pleads guilty or not guilty to the indictment. The arraignment shall only be made on indictments for felony, and may be dispensed with by the court with the defendant’s consent.” ’ The reading of the indictment to the jury in the hearing of the defendant was a substantial compliance with the statute. His entering the plea of not guilty without objection, after the indictment was read by the Commonwealth’s attorney,
“In this case, though not done at the precise time required by the Criminal Code, the duty was performed before the close of the evidence for the Commonwealth, while it was still in the power of the court to recall the witnesses, and give to the party desiring an opportunity to re-examine them. And, as no motion was made for the recall of the witnesses, we do not perceive how the substantial rights of the defendant were prejudiced by the omission now complained of. Nor is the mere fact that the indictment was read by an attorney employed to prosecute, instead of the clerk or Commonwealth attorney, ground for reversal, having been done at the request of the latter officer, in the presence of the court and of the defendant, without objection made at the time.”
In the case at bar the defendant testified in his own behalf, making no question of a want of arraignment until after the close of the trial. The case was fully heard, and we do not see that any substantial right of his was prejudiced in this matter. A judgment of conviction oan not be reversed in this court for every error of law occurring at the trial. Our jurisdiction in such cases is wholly dependent upon the statute, which provides: “A judgment of conviction shall be reversed for any error of law appearing on the record when upon consideration of the whole case the court is satisfied that the substantial rights of the defendant have been prejudiced thereby.”
For, an intelligent understanding of the other errors relied on, it will be necessary to state with some fullness
On these facts, the court below, after instructing the jury on the right of self-defense, gave the following' instruction, qualifying it: “But if the jury believe from the evidence that the deceased had rented of Jack Sharp the land lying north of the old road, and as shown by the plat in evidence before the jury, and that said Sharp had put deceased, in possession thereof, the deceased had the right to plow all of said land, including the new road mentioned and described in the evidence; and if the jury shall further believe from the evidence that the defendant, Hezekiah Utterback, went upon said rented premises armed with a gun, with the intention of killing said Clinkenbeard, or of doing him great bodily harm in case deceased plowed up said road, then such entry upon said land by the defendant was unlawful and forcible, and said defendant was in fact and in law a felonious trespasser, and the deceased had the right to repel such forcible- entry on his premises; and if he, the deceased, believed, and had reasonable grounds to believe, that he was in danger of losing his life or the infliction of great bodily harm at the hands of the defendant, he had .the right to stand his ground and kill the defendant; and if the jury shall believe from the evidence that by reason of a forcible entry, as aforesaid, by the defendant, a shooting took place be
If Clinkenbeard had not died of liis wounds, and had been on trial for shooting appellant when he was sitting down quietly, with his back to him, and unconscious of his approach at the time that Clinkenbeard raised his gun to shoot him, it would hardly be contended that Clinkenbeard would have been entitled to this instruction as the law of self-defense. If it could not be given in favor of Clinkenbeard if on trial, it should not have been given against appellant. The evidence for appellant conduced to show that Sharp had granted him the right to the road, and that he had long held possession of it, with Sharp’s consent. If the instruction given was sound, then, on the same principle, appellant was entitled to an instruction that if Clinkenbeard came upon his road while he was in
The facts show beyond doubt that Clinkenbeard and appellant each thought himself entitled to the disputed land, and each regarded the other as a trespasser. They could not settle this dispute by the arbitrament of arms. Life can not be taken to prevent a 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 instruction quoted seems to have been based upon the case of Baker v. Com., 93 Ky., 304, [19 S.W., 975" court="Ark." date_filed="1892-06-18" href="https://app.midpage.ai/document/hogg-v-laster-6542994?utm_source=webapp" opinion_id="6542994">19 S. W., 975], But in that case, the deceased and his party having undertaken to drive the accused from his own premises, he took refuge in his stable, and, as deceased approached, he called to him to stop. Deceased then started forward, grabbing a gun from one of his friends, and, as he advanced, was shot by appellant. The purpose of the attack was to kill accused or run him off. On these facts, the court only held that the accused was not bound to retreat, but might take such steps as he had reasonable grounds to believe necessary to protect his life or prevent great bodily harm at the hands of his assailant.
In Estep v. Com., 86 Ky., 39" court="Ky. Ct. App." date_filed="1887-06-18" href="https://app.midpage.ai/document/estep-v-commonwealth-7131894?utm_source=webapp" opinion_id="7131894">86 Ky., 39, [9 Am. St. R., 260; 4 S.W., 820" court="Ky. Ct. App." date_filed="1887-06-18" href="https://app.midpage.ai/document/estep-v-commonwealth-7131894?utm_source=webapp" opinion_id="7131894">4 S. W., 820], where the deceased was a trespasser in the accused’s dwelling house, and the wife of the accused had been assailed, and was being beaten on the floor, this court went
“We may here repeat that it is murder for A to deliberately kill B for merely trespassing on A’s property, A at the time knowing that only a trespass was 'intended. The same rule applies mutatis mutandis to the vindication of the right to personal property. If the killing of the trespasser in either case take place in the passion'and heat of blood, the killing is manslaughter; but, unless it be in resisting robbery, it is not justifiable. The reason is that, in the given cases of trespasses, the killing was unnecessary, the party killing knowing that only a trespass, or, at the most, a trivial larceny, was intended.”
In 1 Bishop Criminal Law, sections 857, 858, the law is thus stated: “The general doctrine is that while a man may use ‘all reasonable and necessary force to defend his real or personal estate, of which he is in the actual possession, against another who comes to dispossess him without right,’ he can not innocently carry this defense to the extent of killing the aggressor. If no other way is open he must yield and get himself righted by resort to law.
But the general doctrine as to the defense of property is not applicable to the defense of what is termed the ‘castle.’ In the early times our forefathers- were compelled to protect themselves in their habitation by converting them into holds of defense; and, so the dwelling house was called a ‘castle’. And thence has grown up the familiar doctrine that, while a man keeps the doors of his house closed, no other has the right to
In the case at bar the difficulty occurred over a little strip of land remote from the dwelling house of either party, and neither could legally vindicate his rights as he conceived them to be by a breach of the peace, much less by the taking of human life. The question as to who was in the right about the land is not to be determined here, for neither party had the right to resort to firearms, unless life was then and there in danger, or great bodily harm apprehended. The right of the parties to the land can only be tried in a civil suit between them. The evidence to their respective claims is only admissible in this case to put the jury in the situation of the parties, so that the jurors may better judge as to their motives, and determine, where the evidence is conflicting, more intelligently as to their actions.
We see no error in the other instructions of the court, except that on another trial it will be better to modify No. 1 so as to read, “Not in the necessary or apparently necessary defense of himself or his son, William Utter-back,” in place of the words. “Not in his necessary self-defense,” at present in the instruction.
There was evidence by the Commonwealth tending to show that appellant and Clinkenbeard both began shooting simultaneously when Clinkenbeard appeared, and .^without either waiting for a demonstration by the other.
On this phase of the case, the court should instruct the
This instruction should be substituted for that quoted on a retrial of the ease. The evidence offered by the appellant to show his right to the road in the bottom, and how and on what terms that was exchanged for the road on the hill, why the new road or turnout was made, how long it had been used, and the character of its use, and that Sharp consented to this use of the new road, should have been allowed to go to the jury. It served to show the good faith of the defendant, and, as the punishment is largely in the discretion of the jury, they should be placed, as far as possible, in the situation of the parties. The minutiae of the evidence on these points need not be stated, but only the general facts.
In the exclusion of this evidence and the giving of the instruction referred to, the substantia] rights of the appellant were prejudiced. The proof shows that he was a quiet, peaceable man, of good character, and that the-deceased was a dangerous and violent man, who was by no means a novice in such encounters. The instruction quoted would be understood by an ordinary jury as equivalent to a peremptory instruction to find the defendant guilty. From the verdict which the jury re
The judgment of the court below is therefore reversed, and the cause remanded, with directions to grant appellant a new trial, and for further proceedings consistent with this opinion.