Carico v. Commonwealth
| Decision Date | 15 June 1870 |
| Citation | 70 Ky. 124 |
| Parties | Carico v. Commonwealth. |
| Court | Kentucky Court of Appeals |
APPEAL FROM WASHINGTON CIRCUIT COURT.
W. D. HARRISON, For Appellant.
JOHN RODMAN, Attorney-General, For Appellee.
(Judges HARDIN and PETERS delivering separate opinions, qualifying concurrence and dissenting in part.)
The appellant, John W. Carico, a young physician, residing in the village of Fredericksburg, Washington County, Ky indicted for murder in killing his neighbor, David Smith, "by shooting him with a gun," was found guilty by a jury and sentenced to confinement in the penitentiary for six years. He urges a reversal of the judgment for alleged error in instructions, and in the exclusion of testimony by the circuit court on the trial. The appellant attempted to excuse the homicide by the proof of circumstances conducing to show that Smith without any reasonable cause became extremely hostile to him; assaulted him more than once with deadly weapons; frequently declared that he would kill him; and the evening before the catastrophe said that he would kill him before the next night. About four o'clock in the morning succeeding that last threat Smith, after passing the appellant's office on his way to his own stable, apparently for the purpose of feeding his horse, was shot in the back and killed by the appellant without any apparent demonstration of an immediate assault on the appellant, and without seeing him. The testimony marks Smith as a man of violent passions and inflexible will, and characterizes the appellant as a moral, quiet, and prudent gentleman in his antecedent behavior.
The shooting being before the dawn of day, the jury might possibly have inferred, from the unusual time and all the other facts, that Smith's purpose in being out so early was to reconnoiter for a secret chance to assassinate the accused before he was up in his office, and that the latter was so prematurely ready with his loaded musket only to meet such a night attack, and that seeing Smith he apprehended his speedy return to execute his threats.
On these facts the circuit judge by his rulings adjudged that whatever deductions the jury might make from the evidence, and however assured the appellant may have felt that his life was in immediate and continual danger, nevertheless he had no right to shoot as and when he did unless there was hen imminent danger of an immediate and violent asssult on him by Smith. This insured the verdict and sealed the appellant's doom; and whether that decision was right or wrong is the ruling question on this appeal.
This case is an episode to that of Phillips v. The Commonwealth, 2 Duvall, 328, in which this court adjudged the philosophy of the law of self-defense, which we still approve and now reaffirm. In that case we could not judicially extend the principle therein defined and recognized to a homicide exactly like this; and therefore we expressly forbear even an intimation of an opinion as to such extension. The application of the principle is a difficult task for a jury, and is peculiarly hazardous. But its liability to perversion or abuse by juries can not curtail the principle itself as a law for the court.
Speaking of assured and continual danger to life, this court, in the case in 2 Duvall, defined the principle of self-defense as follows:
Now if a man feels sure that his life is in continual danger, and that to take the life of his menacing enemy is his only safe security, does not the rationale of the principle as thus defined allow him to kill that enemy whenever and wherever he gives him a chance and there is no sign of relenting? But before a jury should acquit they should be well...
To continue reading
Request your trial