34 S.W.2d 964 | Ky. Ct. App. | 1931
Reversing.
The appellants, Bill Wicker and Everett Kinley, were convicted of the offense of voluntary manslaughter, and sentenced to serve five and two years, respectively, in the state penitentiary. They appeal.
As grounds for reversal, they argue that their demurrer to the indictment should have been sustained; that the court erred in the admission and rejection of testimony; that the instructions were erroneous; and that Everett Kinley was entitled to a peremptory instruction.
The case will have to be reversed on account of error in the self-defense instruction; it being the same instruction *120
condemned in the cases of Slone v. Commonwealth,
So far as the admission and rejection of testimony is concerned, the question is presented in this court in the same manner as that condemned in the case of Mullett v. Commonwealth,
With regard to the contention of Everett Kinley that he was entitled to a peremptory instruction, the question is reserved, as the evidence on the next trial may be different from that on the last. We may point out to counsel, however, that their argument addressed to the proposition that Kinley was entitled to a peremptory because no conspiracy was established in this case falls to the ground because the jury did not convict either of the appellants under the conspiracy count or under the conspiracy instruction, for, had it done so, it would have had to convict them of murder. They were convicted only of voluntary manslaughter. Hence it follows that Kinley was convicted because the jury thought that he was an aider and abettor of Wicker, who did the actual killing.
Judgment reversed. *121