Bohannon v. Commonwealth
| Citation | 71 Ky. 481 |
| Parties | Bohannon v. Commonwealth. |
| Decision Date | 19 December 1871 |
| Court | Kentucky Court of Appeals |
APPEAL FROM SHELBY CIRCUIT COURT.
P. U. MAJOR, ____ ROBINSON, J. P. FOREE, For Appellant.
JOHN RODMAN, Attorney-General, For Appellee.
JUDGE LINDSAY DELIVERED THE OPINION OF THE COURT.
At the September term, 1871, of the Shelby Circuit Court Hiram Bohannon was indicted, tried, and convicted for the murder of Addison Cook. His motion for a new trial was overruled, and from the judgment of that court, sentencing him to be hung, he prosecutes this appeal.
The deceased is shown by the evidence to have been a man of lawless habits, overbearing, revengeful, and vindictive, and resolute and determined in the execution of his plans of vengeance against those who incurred his hostility. The testimony also conduces to show that he was at the head of a secret organization which habitually set the laws of the commonwealth at open defiance, and the members of which, under the pretense of inflicting punishment upon criminals who could not be reached by the process of the law, were themselves guilty of the commission of both penal and criminal offenses.
Several months before his death, for reasons not fully explained, Cook became the avowed enemy of the appellant. He more than once openly threatened to take his life. Of these threats Bohannon was informed. On the Saturday before the killing, which took place on Tuesday, the 15th day of August, 1871, Cook, in company with one Penn, and evidently in the execution of a preconcerted plan, with a drawn pistol attacked Bohannon upon the public highway, and the latter only succeeded in escaping assassination by deserting his horse, and concealing himself in the fields adjacent to the road. The assailants then pursued the witness Blakely and his wife, who were in company with Bohannon, and who resided at his house; and when they had overtaken them Cook compelled. Mrs. Blakely to retract certain statements she had made relative to his being the chief of a lawless organization known as Ku-klux, threatening her with immediate death in case she refused to make the required retraction. He then announced to Mrs. Blakely and her husband that he intended to kill Bohannon on sight.
This threat they communicated to Bohannon that night. They also gave him a detailed statement of Cook's conduct at the time it was made.
On the morning of the killing, and but a short time before it took place, Cook asked a witness named Hamilton whether he could not frame some excuse for going to Bohannon's house, and ascertaining his whereabouts, stating that he was anxious to ascertain that fact.
On that morning Bohannon left his house, so far as the evidence shows, for the first time after he was attacked on the Saturday before. He took with him a double-barreled shotgun. The deceased and the appellant met in the railroad cut near the village of Bagdad. Two shots were heard in quick succession. No one saw the rencounter. Cook was found a few minutes afterward lying dead on the side of the railroad track, with a revolving pistol in his pocket, about half way out. The shot had taken effect in the back of his head and neck, and in his body between the shoulders. Bohannon was seen coming from the spot where the shooting was done, and in reply to a question said that "he had shot a thief, who had run him out of the road a few days before, but that he would not run anybody else out of the road again."
Upon these facts the court gave the jury a series of carefully prepared instructions, eleven in number, and refused all that were asked by Bohannon. It is complained that several of the instructions given are erroneous, and that taken together they were misleading, and prejudicial to the substantial rights of the appellant.
By the first instruction the jury were told that "by the term malice aforethought is meant a predetermination to kill, however suddenly or recently formed in the mind of the person killing before the fatal act, so that the determination actually exists in the mind before and at the time of the killing, and be not prompted alone by the first transport of passion and under great provocation." If the plea of self-defense had not been relied on, and the sole effort of the appellant had been to reduce the killing from murder to manslaughter, this definition might not have been calculated to prejudice his rights; but standing as it does without any subsequent modification or explanation, it is in effect a determination by the court that killing in necessary self-defense of one's person or property may be killing with malice aforethought, and therefore legally murder. A killing to constitute murder must be done unlawfully, and unless it be unlawful it can not have been done with malice aforethought, although it may have been predetermined.
A party upon whom a murderous assault is made, when there are no other apparent means of escape, may determine to defend himself without attempting to flee, and if necessary to kill his assailant; and if, pursuant to this predetermination suddenly formed, he does kill, it will be neither a malicious nor unlawful but an excusable homicide. (3 Greenleaf's Evidence, section 550; 1 East's P. C. 271.)
By the seventh instruction the jury were told that ...
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