Commonwealth v. Hourigan

• Decision Date: 19 November 1889
• Citation: 12 S.W. 550,89 Ky. 305
• Parties: COMMONWEALTH v. HOURIGAN.
• Court: Kentucky Court of Appeals

12 S.W. 550

89 Ky. 305

COMMONWEALTH v. HOURIGAN.

Court of Appeals of Kentucky.

November 19, 1889

Appeal from circuit court, Taylor county; W. E. RUSSELL, Judge.

"To be officially reported."

Thomas J. Hourigan was convicted of murder, and was granted a new trial. The commonwealth appeals. Instruction No. 2, referred to in the opinion, was as follows: "If the jury believes from the evidence, to the exclusion of a reasonable doubt the accused, at the time, place, in the manner, and with the weapon stated in instruction No. 1, did unlawfully and feloniously shoot and kill Samuel B. Hays, not in his necessary or apparently necessary self-defense, from death or great bodily harm, but without malice, in sudden heat and passion, then the jury should find the accused guilty of voluntary manslaughter, and fix his punishment at confinement in the penitentiary for a term not less than two nor more than twenty-one years,"--the court striking out the following: "But mere words, however opprobrious or insulting, are not sufficient provocation to reduce a killing from murder to manslaughter." Instruction No. 3, asked by the commonwealth, was as follows: "If the jury believe from the evidence that defendant, at the time he killed Sam B. Hays, if he did kill him, had reasonable grounds to believe, and did believe, that he was then and there in danger of death, or great bodily harm, at the hands of the deceased, and that he had no other apparently safe means of escape, they should acquit, unless, by his wrongful act, defendant made the harm or danger to himself necessary or excusable on the part of deceased; in which event they cannot acquit on the ground of self-defense." Instruction marked "B" was as follows: "The court instructs the jury that it is admitted by the commonwealth as true that within twelve months before the killing of Sam Hays, said Hays, at Riley's Station, in Martin county, Ky. threw defendant's saddle-pockets out of Hays' store, and cursed and abused defendant."

It was proper to modify an instruction that if defendant, without malice, in sudden heat and passion, but not in necessary self-defense, killed deceased, he was guilty of voluntary manslaughter, "but mere words, however opprobrious or insulting, are not sufficient provocation to reduce a killing from murder to manslaughter," by striking out the words quoted.

The slayer cannot urge in justification of the killing a necessity produced by his own wrongful or unlawful act.

Finley Shuck, for the Commonwealth.

Avritt & Russell, for appellee.

HOLT J.

At the June term, 1889, of the Taylor circuit court, the appellee Thomas J. Hourigan, was convicted of murder for killing of his brother-in-law, Samuel B. Hays. and his punishment fixed by the jury at confinement in the penitentiary for life. A new trial was granted. During the progress of the trial the commonwealth excepted to various decisions of the court, and now, although the case has not been finally disposed of, it questions by appeal their correctness, in order that there may be, in the language of the Criminal Code, a "correct and uniform adminnistration of the criminal law." Its right to appeal, although there has been no final disposition of the case, was declared in the case of Com. v Matthews, ante, 333, (decided by this court on November 14, 1889.) It is now urged in its behalf that no error was committed upon its part upon the trial of this case; that a new trial was therefore improperly granted; and that this court should reverse the order granting it, and by mandate order a judgment to be entered in conformity to the verdict. Where the only question presented is whether a new trial should be granted, the law has wisely left it to the judgment of the trial court. It witnesses the entire conduct of the trial. It has every opportunity to know whether it has been a fair one, and conducive to justice, both to the public and the individual. Section 281 of our Criminal Code has therefore provided that its decision upon a motion for a new trial shall not be subject to exception.

We will now inquire as to the correctness of the decisions of the court of which the state complains. After it had overruled a motion by the appellee to continue the case, based upon his written affidavit, it allowed an amended affidavit to be filed, and then held that it would continue the case, unless the commonwealth's attorney admitted the truth of the matters stated in the affidavits. This was a matter in the discretion of the court. If an iron rule were established, forbidding the amendment under any and all circumstances of an affidavit for a continuance, it would be devoid of reason, and would often result in injustice.

It is urged upon the part of the appellee that no question arising during the trial can be considered by this court, because, as is claimed, there is no bill of exceptions. The judge below acting upon the idea, doubtless, that there could be no appeal by the commonwealth, in the absence of a final judgment, refused to sign, or even consider, any bill of exceptions. One was tendered in open court upon the part of the state, and the court asked to sign it, and then to order it to be filed. If satisfactory to him, the judge should have signed it. If not, he should have corrected it, or had it done, and then signed it. Upon its refusal, upon the ground that no bill of exceptions was proper in the case, the affidavits of several by-standers were attached to the bill, stating, in substance, that it contained a true version of what took place upon the trial. All this is shown by the record before us. Section 282 of the Criminal Code provides that the bill of exceptions in a criminal cause shall be prepared, settled, and signed as in civil cases; and subsections 3, 5, § 337, Civil Code, are: "(3) If the bill of exceptions be approved by the judge, he shall sign it, and it...