Canter v. Commonwealth

• Decision Date: 15 June 1917
• Citation: 176 Ky. 360,195 S.W. 825
• Parties: CANTER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

195 S.W. 825

176 Ky. 360

CANTER v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 15, 1917

Appeal from Circuit Court, Woodford County.

Bascom Canter was convicted of voluntary manslaughter, and appeals. Affirmed.

Wallace & Harriss and H. A. Schoberth, all of Versailles, for appellant.

M. M Logan, Atty. Gen., and D. O. Myatt, Asst. Atty. Gen., for the Commonwealth.

HURT J.

The appellant, Bascom Canter, a young man 33 years of age, and who resided at Versailles, for the pleasure of the trip made a journey to Lexington and returned the same day. He left Versailles at about 11 o'clock and rode on a motor truck to Lexington, and returned to Versailles at about 25 minutes after 3 o'clock. He carried with him to Lexington a hand satchel, or grip, and a pistol. The grip was taken in which to bring back, as he says, at the request of a friend, a dozen bottles of beer, and the pistol was carried along presumably out of extreme caution that no opportunity might be allowed to escape upon which he might defend himself. When he returned to Versailles the grip he bore contained the beer, and, as he says, also the pistol and a flask of whisky. He placed the grip with its contents in the rear end of a pool room, and after taking a drink of the whisky engaged in a game of pool. Certain witnesses say that at that time he was intoxicated, but he says that he had taken only the proverbial "two small glasses" of beer in Lexington, and no more. Very soon Clarence Smith, an acquaintance of Canter, came into the room and took a seat and was observing the game. Canter approached Smith, and smote him upon the shins with a billiard cue, as he says, in great good humor, but Smith, however, objected to this treatment, and an altercation resulted, in which Smith said to Canter to go away; that he was drunk. Canter denied being drunk. Before the altercation ended Smith seized a billiard cue, but upon the demand of the proprietor of the pool room put the cue aside. According to witnesses, Canter said to Smith that he would "see him again," and, according to Canter's statement, "that he would see him when he was in good humor." Very soon Canter left the pool room, and to a friend, whom he met on the street near the pool room, he said that he had been treated "dirty," and was going home, which the friend advised him to do. In not exceeding 30 minutes Canter, who says that he went to his home for supper, returned to the pool room, where he found Smith engaged in a game of pool with one Roy Bartlett. He said to Smith that he "wanted to see him a minute." Smith replied, "In a minute," or "Wait until I get the balls racked up," or some similar expression. Canter walked back to where the grip was and took from it the pistol and whisky which he put in his pockets, and then returned near to where Smith was playing. Smith was standing beside one of the tables, with the big end of the cue he was using upon the floor, and the other end in his hand or under his arm, and was engaged in taking the balls from a pocket in the table when, as all those present say, Canter advanced upon Smith, with the pistol presented at him, with the declaration that, "I told you something this evening," or "You tried to start something this evening," or some kindred expression. Smith raised the cue he had and began to strike Canter over the head and shoulders. Canter, with his left arm raised to ward off the blows, and the pistol still presented at Smith, withdrew a few steps, when he discharged the pistol. The bullet from the pistol took effect upon Smith, and he fell down and died. Those present, during the time that Canter was stepping back from Smith, heard the pistol giving out a clicking noise, and after the pistol was taken from Canter it was found that by reason of some defect in its action that when it was attempted to be discharged it would oftentimes revolve around with the clicking noise before it would be discharged. Canter claims that when he returned from the rear of the pool room with his pistol and whisky and came near to where Smith was playing that Smith passed by him and said something to him, which he failed to remember or understand, and then Smith went to the side of the pool table and put his hand in his pocket, when he said to Smith, "You tried to start something this evening," and immediately drew the pistol and presented it; that Smith commenced and continued to strike him with the cue, and that he warned Smith to desist or he would be compelled to shoot, and when Smith knocked him to his knees, and the blood was running, from a wound on his head, into his eyes, that he discharged the pistol. The witnesses present do not corroborate Canter in his statement in regard to warning Smith to desist, or with regard to Smith addressing Canter or putting his hand in his pocket, just before Canter assaulted him with the pistol.

Canter was indicted for the crime of murder, and his trial resulted in his conviction of voluntary manslaughter and the imposition of a penalty of confinement in the state reformatory for 21 years. The circuit court denied him a new trial, and he has appealed.

The grounds upon which he bases his appeal are these: (1) The trial court misinstructed the jury. (2) The bias of one member of the jury and his misconduct after having been sworn. (3) The misconduct of the jailer of Woodford county, in talking with some of the jurors after they had been sworn, without the permission of the court, and the misconduct of the officer in charge of the jury in permitting the jailer to converse with them.

(1a) The jury were advised by an instruction that if they believed from the evidence, beyond a reasonable doubt, that the appellant unlawfully, and not in his necessary or apparently necessary self-defense, shot and killed Smith, to find him guilty of murder, if it believed from the evidence, beyond a reasonable doubt, that he shot and killed Smith willfully, feloniously, and of his malice aforethought, and guilty of voluntary manslaughter, if it believed from the evidence that he shot and killed Smith in a sudden affray or in sudden heat of passion, and without previous malice. The instruction advised the jury as to the penalty which it might impose in the event it found the appellant guilty of murder, and also the penalty in the event it found him to be guilty of voluntary manslaughter. By further instructions, the jury was directed that if it believed from the evidence beyond a reasonable doubt that appellant was guilty of murder or voluntary manslaughter, but had a reasonable doubt of which crime he was guilty, to find him guilty of the lesser crime, that of voluntary manslaughter; but if it had a reasonable doubt of his being proven to be guilty of either crime, to find him not guilty. The meaning of the words "malice" and "aforethought," as used in the instructions, were defined by another instruction. There is no complaint of the instructions above given, and it does not seem that they are subject to any just criticism.

The instruction, which is complained of, was the one defining the law of self-defense, as applied to the appellant under the facts attending the homicide, and was as follows:

"If you believe from the evidence that at the time Bascom Canter shot and killed the deceased, Clarence Smith, if you shall believe from the evidence beyond a reasonable doubt that he did so, he believed, and had reasonable grounds to believe, that he was then and there in danger of death or the infliction of some other great bodily harm at the hands of the deceased, and that it was necessary, or was believed by the defendant, in the exercise of a reasonable judgment, to be necessary, to shoot and kill the deceased in order to avert that danger, real or to the defendant apparent, then you will find the defendant not guilty on the ground of self-defense and apparent necessity thereof; but if you should believe from the evidence beyond a reasonable doubt that the defendant, when he was in no danger, or apparent danger, of death or great bodily harm at the hands of Smith, began the difficulty by assaulting the said Smith by drawing a gun upon him, and by willingly continuing the difficulty up to the time of firing the shot and so made the danger to himself excusable on the part of Smith, in his necessary or apparently necessary self-defense, or if the combat was voluntarily engaged in by both, then in each event the defendant cannot be acquitted on the ground of self-defense, unless the jury should believe that the defendant had abandoned, in good faith, his intention, if he had any, to bring on a difficulty for said purpose, and withdrew in good faith from the conflict, if they believe he entered into same and engaged in the same willingly with deceased before he shot deceased."

That portion of the instruction by which the jury was told that if it believed from the evidence that at the time the appellant shot and killed Smith he then believed and had reasonable grounds for believing that he was then and there in danger of losing his life or suffering great bodily harm at the hands of Smith, and that it was necessary or was believed by appellant, in the exercise of a reasonable judgment, to be necessary to shoot and kill Smith in order to avert the danger, real or to the appellant apparent, to find appellant not guilty, upon the ground of self-defense and apparent necessity, is not complained of; but the remaining portion of the instruction, wherein a qualification is put upon his right to shoot Smith in self-defense, to the effect that if the jury believe from the evidence beyond a reasonable doubt that if appellant was in no danger or apparent danger of death or serious bodily harm at the hands of Smith, and he began the difficulty by assaulting...