Carroll v. Commonwealth

• Decision Date: 30 November 1904
• Citation: 83 S.W. 552
• Parties: CARROLL v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

83 S.W. 552

CARROLL v. COMMONWEALTH.

Court of Appeals of Kentucky.

November 30, 1904

Appeal from Circuit Court, Bell County.

"Not to be officially reported."

Matt Carroll was convicted of murder, and he appeals. Reversed.

E. N Ingram, D. B. Logan, and J. L. Reeder, for appellant.

N. B Hays and Loraine Mix, for the Commonwealth.

PAYNTER J.

The appellant, Matt Carroll, was indicted and convicted for the murder of William Begley. The homicide took place at the house of one Jones. Powell Carroll, a boy 19 years of age, is the nephew of the appellant. Whilst Jones and his family and others were sitting around the room, the decedent, William Begley, without any provocation, struck Powell Carroll, and knocked him off of a chair. He then picked up a chair and struck him again, without any cause whatever. As to these facts there is no conflict in the testimony. The appellant Matt Carroll, claims that he was in the room at the time of the assault, and that he stabbed and killed Begley in defense of his nephew. Evidence was introduced by the commonwealth tending to show that the appellant did not enter the room until after the deceased had made the assault upon Powell Carroll, and that the appellant, under these circumstances committed the homicide. Among other instructions, the court told the jury that if Begley "was then and there about to inflict upon Powell Carroll death or great bodily harm, he (appellant) had the right to use such force at his command as was necessary, and no more, to avert the real or apparent danger to Powell Carroll, even to the extent of taking the life of said Begley." This instruction required the appellant to measure the force necessary to be used to protect Powell Carroll with as much exactness as an apothecary would drugs on his scales. If, in the opinion of the jury, the accused used more force than was necessary to protect Powell Carroll from death or great bodily harm at the hands of Begley, he could not be acquitted, although he may have, in the exercise of reasonable judgment, concluded that there was an apparent necessity for using just the amount of force employed by him. If the facts justified the appellant in striking Begley in defense of his nephew, he had the right to use such force as was apparently necessary to have averted the impending peril to him. No one is capable, under such circumstances, of measuring the exact force that is necessary to avert such...