Minton v. The Commonwealth
| Decision Date | 20 September 1881 |
| Citation | 79 Ky. 461 |
| Parties | Minton v. The Commonwealth. |
| Court | Kentucky Court of Appeals |
APPEAL FROM BRECKINRIDGE CIRCUIT COURT.
MERCER, HAYCRAFT, KINCHELOE, AND ESKRIDGE FOR APPELLANT.
P. W. HARDIN, ATTORNEY GENERAL, FOR APPELLEE.
JUDGE HARGIS DELIVERED THE OPINION OF THE COURT.
The appellant Minton, as the evidence tends to show, was at his voting precinct, partially intoxicated, on the day of the election for representative to the legislature, and that Willis T. Frank, who was a candidate for that office, and the favorite of Minton, was also there, when one Speak rode up in haste, huzzaing for Frank's opponent. He alighted from his horse, began dancing, and continuing to shout for his candidate, and Minton answered him with a shout for his candidate. This occurred several times, when Minton struck him once or twice in the back of the head or neck, and Speak turned, seized him by the throat, backing him to a corner of the fence, and choked him until he was black in the face. The father of Minton attempted to separate them, and while he was so engaged, or just afterward, the appellant Minton drew his pistol, and, either intentionally or accidentally, fired it and killed said Willis T. Frank. Immediately after the shot, the crowd, which had pressed close to Speak and Minton during their struggle, and manifesting favor to the former, loudly exclaimed "kill him!" and pursued Minton with rocks and clubs.
He was indicted, tried, and convicted of the offense of manslaughter, and sentenced to the penitentiary for twenty-one years, and he prosecutes this appeal, seeking a reversal mainly on the ground that the court erroneously instructed the jury.
This is the only question necessary to be considered.
The fifth instruction is as follows:
"But if defendant assaulted Speak, and Speak repelled the assault with more violence and more force than was necessary to defend and protect himself from the force offered by defendant, and was inflicting, or about to inflict, great bodily harm upon defendant, such as would endanger his life, or if defendant believed, and had reasonable grounds to believe, that Speak was then about to inflict great bodily harm upon him, such as would endanger his life, and he had no other apparently safe means of escaping therefrom, then he had the right to use such force and such means, and no more, as was necessary to save himself from such impending danger; and if Frank was killed by the use of such means, the defendant is...
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