125 Ky. 699 | Ky. Ct. App. | 1907
Reversing.
The appellant, "William White, was indicted and tried in the Boyd circuit court for the murder of George Layne, whom he shot and killed in the city of Catlettsburg. A verdict was returned by the jury finding him guilty of voluntary manslaughter and fixing his punishment at confinement in the penitentiary for 10 years. He complains that numerous errors were committed, to liis prejudice, by the lower court on the trial, and asks a reversal of the judgment of conviction on account thereof.
The homicide occurred in Damron’s saloon under the following circumstances: Appellant and three other persons, Allen, Galloway, and Cassaday, were sitting around a table in a room belonging to and adjoining the saloon, engaged in a game of cards. Others were present looking at the game. Harry Osborne, bartender, and Martin, a negro porter, employed in the saloon, were in the barroom. Layne, the deceased, walked into the saloon, and back to where the game of cards was in progress. He accosted Galloway, saying, “R. L., I am hunting for trouble. ’ ’ Galloway making no reply, Layne said to others sitting at the table: “I am hunting for trouble, how about you?” One of the party addressed then said to Layne, “I am hunting to keep away from it,” to which Layne replied, £ £ So am I; we will call it off, then.” After this remark Layne turned to Osborne, a bystander, and said, “Come back here; I want to see you a minute.” He and Osborne then walked back to a urinal in the rear of the room and began a conversation; Layne standing with his right hand
The evidence introduced in behalf of appellant conduced to prove that Layne was a man of violent, vindictive temper, and quarrelsome disposition when drinking, and that the night before his death was spent by him in prison for drunkenness and disorderly conduct; that his favorite weapon was the knife, and this weapon had been used by him with terrible effect upon appellant more than a year previous to the homicide, at which time the appellant sustained at his hands numerous cuts and stabs, one of which penetrated and cut off a piece of his liver and came near causing his death; that after a partial recovery from the long and dangerous illness caused by these wounds appellant happened to meet Layne on the street, and the latter in a threatening manner asked him if he had enough, and whether he thought himself as good a man as he (Layne) was. It further appeared from- appellant’s testimony that there had been a bad state of feeling between Layne and appellant for years, an d that the former, after the re-encounter in which appellant- was wounded, had assaulted him with a club and frequently threatened his life. Indeed, he continued to threaten him down to within a few days of the homicide. On two occasions Layne told Mrs. Clara Stock that he had tried to finish appellant once and had cut the point of his liver off, and he would never die satisfied until he finished him and could hold his liver up on the point
It appears that the lower court admitted a large part of appellant’s testimony as to the attack made on him by Layne with the knife and at another time with a club a year or more before the homicide, but later, and before the case was submitted to the jury, excluded all of it from their consideration, except the bare fact that there had been previous difficulties between them. It is insisted for appellant that this ruling of the trial court was error, and in that conclusion we concur, for the excluded testimony, as well as the threats of Layne and his bullying and contemptuous manner toward appellant when they chanced to meet, was admissible as tending to show his animus toward appellant, and whether or not the latter at the time of the homicide had reasonable grounds to believe and did in good faith believe that he was in peril at the hands of Layne. In Kennedy v. Commonwealth, 77 Ky., 340, this court, speaking through Judge Cofer, said: “Threats, menaces,
It is further contended by appellant that the lower court erred in instructing the jury as to the law of self-defense-. The objection is as to the qualification contained in the latter part of the instruction. We do not approve the qualification as expressed, but think it should be so stated as to make the instruction as a whole read as follows: “If the' jury believe from the evidence that at the time the accused shot the deceased (if they should believe from the evidence beyond a reasonable doubt that he did shoot and kill him) he believed and had reasonable grounds to believe that when he was then and there in danger of death or the infliction of great bodily harm upon him .at the hands of the deceased, and that it was necessary, or believed by the accused in the exercise of reasonable judgment to be necessary, to shoot the deceased in order to avert that danger, real or to the deceased apparent, then they should acquit the accused upon the ground of self-defense and apparent necessity. On the other hand, if the jury shall believe from the evidence beyond a reasonable doubt that the accused, when he did not believe, or have reasonable grounds to believe, that his life or person were in danger at the hands of the deceased, did first willfully and feloniously assault the deceased with a pistol, and in so doing make the harm or danger to himself, if any there was, necessary or excusable on the part of deceased in his own necessary self-defense, they should not in that event excuse the accused on the ground of self-defense.” O’Day v. Commonwealth,
For the reasons indicated, the judgment is reversed, and cause remanded for a new trial consistent with the opinion.
Judge Hobson delivered the following extension of opinion:
Where the defendant introduces proof as to an assault by the deceased on him, the Commonwealth may show that the deceased did not so assault the defendant, and to this end may show what did occur at the time referred to. But the proof should be limited to the res gestae and much detail should be avoided. The court should charge the jury that the evidence is not admitted to show who was to blame ini that difficulty, and is only to be considered by them on the question whether at the time of the homicide the defendant believed, and had reasonable grounds to believe, he was then and there in danger of death or great bodily harm at the hands of deceased.
The opinion is extended as indicated.