Cockrell v. Commonwealth

• Citation: 95 Ky. 22,23 S.W. 659
• Parties: COCKRELL v. COMMONWEALTH.
• Decision Date: 12 October 1893
• Court: Court of Appeals of Kentucky

23 S.W. 659

95 Ky. 22

COCKRELL v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 12, 1893

Appeal from circuit court, Estill county.

Hal Cockrell, convicted of manslaughter, appeals. Reversed.

Geo Denny, Jr., Robt. Riddell, and John Bennett, for appellant.

W. J Hendrick, for the Commonwealth.

HAZELRIGG J.

Upon his fourth trial under an indictment for the murder of James Amerine, in Estill county, in November, 1887, the appellant was found guilty of manslaughter, and sentenced to confinement in the penitentiary for the term of four years. He insists that his conviction was at last secured by reason of the misinstruction of the jury by the trial court, the misconduct of the prosecuting attorney in his speech to the jury, and the misconduct of certain members of the jury during the trial. Stated briefly, the commonwealth's proof established that, after a hasty controversy with the deceased in the courthouse yard in the town of Irvine, the appellant rapidly left the yard, and, procuring a gun from a neighboring house, came back hurriedly, approached his antagonist, and, after deliberate aim, fired the fatal shot. The facts and circumstances attending the killing, and relied on by the appellant as showing the homicide to have been excusable, and as establishing a case of self-defense on his part, are about these: It was county court day, and late in the evening a row was in progress in a saloon. The deputy sheriff was sent for to quell the disturbance. He succeeded in arresting one Puckett, who was drunk and disorderly, and, while attempting to take him to jail, was resisted and assailed by a large number of the excited and drunken friends of the prisoner. Among these latter, the deceased, Amerine, was one of the most active and unruly. He swore that Puckett should not be taken. He cut at the deputy with a knife which he flourished in his hand from the inception of the trouble until he was killed. The deputy was sorely pressed, and summoned as his aid in suppressing the mob, and in landing the prisoner in jail, the appellant, Cockrell, Butterworth, and perhaps others. The officers, with the prisoners and the crowd, had surged across the street, and into the courthouse yard. The deputy was thrown to the ground, and his nephew, young Park a lad of some 16 years, was pushing through the mass of yelling men, towards his uncle, when he was roughly accosted by the deceased, knife in hand; and, while the boy was crying, the appellant, seeing his danger, said to Amerine "Don't hurt him," or "Jim, don't hurt him. He is nothing but a boy." The deceased turned upon the appellant, saying, "What in the hell have you got to do with it?" And, when assured that no offense was intended, he advanced on the appellant, who backed away, protesting all the time that he had nothing against him, until, reaching the yard gate, he sprung through it, followed by the angry and insulting words of his assailant. Amerine then proceeded towards the front of the courthouse, and, flourishing his knife, said he would "sink that in him." Cockrell procured a gun; walked up the pavement towards the still struggling, resisting crowd, and Amerine. He stops, levels his gun at Amerine, taking deliberate aim. There is nothing in the way of the expected shot. Suddenly, he voluntarily takes down his gun, lowering the breach, and, extending the muzzle upward, the expected report is not heard; and the trouble between them is supposed to be over. But Richardson and Wilson, having seen the appellant's hurried return with his gun and his approach towards Amerine, rush on him, and, when they reach him, seize him, and hold him and his gun "as in a vise." Amerine, who was only a few steps away, seeing the situation of the appellant, stooped forwards, and with his left hand extended as if to grab the muzzle of the gun, and with his right hand grasping the open knife, made at the appellant. The latter,...