Bush v. The Commonwealth

• Citation: 78 Ky. 268
• Parties: Bush v. The Commonwealth.
• Decision Date: 03 February 1880
• Court: Court of Appeals of Kentucky

78 Ky. 268

Bush v. The Commonwealth.

Court of Appeals of Kentucky.

February 3, 1880.

APPEAL FROM FAYETTE CIRCUIT COURT.

MARCUS A. SMITH FOR APPELLANT.

L. P. TARLETON, JR., FOR APPELLANT.

P. W. HARDIN, ATTORNEY GENERAL, FOR APPELLEE.

JUDGE HINES DELIVERED THE OPINION OF THE COURT.

For the purpose of testing the correctness of the instructions, we will assume that every deduction that the jury were authorized from the evidence to make, is a fact established by the evidence.

The jury might have found, 1st, that the girl was accidentally shot by appellant in an attempt to shoot, in necessary self-defense, her father; 2d, that the accused had the pistol in his hand for defense from an anticipated assault, and that the shot producing the wound was unintentional, both as to the firing of the pistol and as to the person wounded; 3d, that the killing was deliberate murder. The finding was guilty of murder, and a sentence of death by hanging.

It is first complained that the court below erred in neglecting to instruct the jury as to the offense of involuntary manslaughter, it being the duty of the court to give the jury the whole law of the case.

Under an indictment for murder or manslaughter, when there is evidence from which the jury might find the existence of facts constituting involuntary manslaughter, it becomes the duty of the court to instruct the jury as to the law of this offense. (Buckner v. Commonwealth, 14 Bush, 603; Cicero Brown v. Commonwealth, MS. Op., Nov. 15th, 1879.) For the failure of the court below to so instruct, the judgment should be reversed.

The fourth instruction given by the court below is complained of because the jury are told that "malice is also implied by the law from any deliberate and cruel act committed by one person against another, however suddenly done."

This court decided in Farris v. Commonwealth and in Buckner v. Commonwealth (14 Bush), and in numerous manuscript opinions since that time, that the existence of malice must be left to the determination of the jury as any other fact, and that it is error, under any circumstances, to tell the jury that the law implies malice from any fact or facts. The circumstances of this case are such as to render it manifest, for the reasons given in the Farris case, that the instruction complained of was misleading and detrimental to the substantial rights of appellant, and in itself is a sufficient reason for reversing the judgment of the court below.

While counsel do not complain of the definition of the word malice, as given by the court, we think proper to say, without entering into the reasons therefor, that it is not accurate, and that while we might not feel justified in reversing on that account alone, it is safest not to attempt a definition of malice in any case. The effect of all such instructions is more apt to mislead than to enlighten the jury.

The following instruction is also objected to, to-wit: "If the jury believe from the evidence, beyond a reasonable doubt, that the defendant, John Bush, in Fayette county, and before the finding of the indictment, wilfully shot Annie Vanmeter with a pistol, and that she died from the effects of the wound then inflicted upon her, whether said wound was the sole cause or was a contributory agency in producing death, when such shooting was not necessary, and not reasonably believed by the defendant to be necessary for his own protection from immediate death or great bodily harm then threatening him, the jury should find the defendant guilty: guilty...