Commonwealth v. Cook

• Decision Date: 14 February 1888
• Citation: 7 S.W. 155,86 Ky. 663
• Parties: COMMONWEALTH v. COOK.
• Court: Kentucky Court of Appeals

7 S.W. 155

86 Ky. 663

COMMONWEALTH v. COOK.

Court of Appeals of Kentucky.

February 14, 1888

Appeal from circuit court, Whitley county.

C. W Lester, for appellant.

P. W Hardin, for appellee.

BENNETT J.

The trial of the appellant, in the Whitley circuit court, for willfully and maliciously shooting and wounding Mose Owsley with the intent to kill him, Owsley, resulted in the conviction of the appellant of the charge, and his punishment was fixed at confinement in the state penitentiary for the term of one year. His motion for a new trial having been overruled, he has appealed to this court. Two errors are assigned for a reversal of the case: First, the court erred in refusing to properly instruct the jury upon the subject of self-defense; second, misconduct of the commonwealth's attorney, consisting in making a statement of fact which was not in evidence, in the presence of the jury, and which was prejudicial to the rights of appellant. These grounds will be noticed in their order.

The commonwealth introduced George Berry as a witness. He testified that a short while before the shooting he and appellant went to Mose Owsley's lunch-room, to get a lunch; that Owsley refused to let them have the lunch thereupon they went to Salyer's saloon, which was about the distance of 100 yards from Owsley's lunch-room; that while they were in Salyer's saloon, Owsley came in, and cursed and abused the crowd; that he had a pistol in his hand, and pointed it towards appellant, cursing him at the same time; that the appellant, while Owsley was pointing the pistol towards him and cursing him, drew his pistol, and fired it at Owsley, the ball striking him in the breast; that Owsley then left the room, and, as he went out at the door, fired two shots back into the room; that Owsley told witness that day, and before the shooting, that he intended to whip the appellant; that he communicated this threat to the appellant before the shooting. The appellant's evidence in his own behalf was substantially the same as that of George Berry. The commonwealth introduced other witnesses, whose evidence threw the blame entirely upon the appellant. The evidence of Berry and the appellant, if believed by the jury, strongly tended to make out a case of self-defense. The appellant was therefore entitled to an instruction embodying and defining the law of self-defense.

It is contended by the common wealth that instruction No. 1, given at the instance of the commonwealth, gave the appellant the benefit of the law of self-defense. The jury were told by that instruction that if the appellant willfully and maliciously, "and not in his necessary, or to him reasonably apparent necessary, self-defense," shot and wounded Owsley, etc., then they must find him guilty. The court refused to give any other...