Connor v. Commonwealth
| Decision Date | 16 June 1904 |
| Parties | CONNOR v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Daviess County.
"To be officially reported."
Martin Connor was convicted of manslaughter, and appeals. Affirmed.
Sweeney Ellis & Sweeney and C. M. Finn, for appellant.
N. B Hays, Atty. Gen., and Loraine Mix, Asst. Atty. Gen., for appellee.
On December 25, 1902, W. M. Parsons insulted Ben Cutler in a saloon in Owensboro. Cutler struck Parsons, and thereupon a fight ensued between Parsons and Ben Cutler and his brother Fred. Parsons was forced to the back part of the room, and was pretty badly beaten up, when the bartender and a man named Davidson intervened, and took from Ben Cutler a chair with which he was about to strike Parsons; throwing him back toward the center of the room. Appellant, Connor, who had taken no part in the fight, was standing near the bar counter. As to what followed the proof is somewhat conflicting. The proof for Connor is to the effect that Ben Cutler, with a knife in his hand, advanced on him threatening to kill him, and that he retreated behind the counter and got a pistol there, and shot Ben Cutler with it after twice calling upon him to stop, just as he was about to come around behind the counter. The proof for the commonwealth tends to show that Connor had the pistol in his hand, and was out in front of the counter, before Ben Cutler was thrown around, and that he first aimed at Fred Cutler, and, when he dodged down, shot Ben. Ben Cutler died almost immediately. The numerical weight of the evidence sustained the defendant's version of the affair, but the jury found him guilty of manslaughter, and fixed his punishment at 10 years in the penitentiary. Parsons and the Cutlers were all drunk. Connor was sober, was about 30 years of age, and, so far as appears, was on good terms with all of the parties. While the evidence would have sustained a verdict for the defendant, the jury saw and heard the witnesses, there was sufficient evidence to go to the jury, and it has often been held that this court will not reverse in criminal cases on the facts. We need not, therefore, discuss the evidence, but only state so much of it as is material in determining the objections urged to the instructions of the court to the jury.
In instruction 1 the court defined the crime of murder. Then he gave instruction 2, in these words:
"The court further instructs the jury that if they believe from the evidence, to the exclusion of a reasonable doubt, that in the county of Daviess, and before the finding of the indictment herein, the defendant did unlawfully, willfully, and feloniously kill and slay one Ben Cutler, by shooting him to death with a pistol loaded with powder and ball, or other hard substance, of which shooting and wounding said Ben Cutler did die within a year and a day thereafter, but they further believe from the evidence, to the exclusion of a reasonable doubt, that said shooting was not done maliciously and with malice aforethought, but do believe beyond a reasonable doubt that same was not done in his necessary self-defense, or what appeared to him at the time to be his necessary self-defense, but was done in a sudden heat and passion, or sudden affray, and under such provocation as was reasonably calculated to excite an ungovernable passion, then they should acquit him of the charge in the indictment, and find him guilty of voluntary manslaughter, and fix his punishment at confinement in the penitentiary for a period of not less than two years, nor more than twenty-one years, in the discretion of the jury."
The court apparently meant to tell the jury that if they believed from the evidence, beyond a reasonable doubt, that the defendant shot and killed Ben Cutler, and had a reasonable doubt as to whether the shooting was done with malice aforethought, but believed from the evidence, beyond a reasonable doubt, that the shooting was done in a sudden heat and passion or sudden affray, and not in his necessary or apparently necessary self-defense, they should find him guilty of voluntary manslaughter. The instruction, as given, required the jury apparently to find from the evidence, to the exclusion of a reasonable doubt, that the shooting was not done maliciously or with malice aforethought, in order to reduce the crime from murder to manslaughter, and, if the jury had found the defendant guilty of murder, the error would be material. But the jury only found him guilty of manslaughter. All the instructions given by the court must be read together. Instructions 5 and 6 are as follows:
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...Kentucky law that a man does not have to act the coward and run, or 'retreat to the wall,' as under the common law rule. Connor v. Commonwealth, 118 Ky. 497, 81 S.W. 259; Gibson v. Commonwealth, 237 Ky. 33, 34 S.W.2d quoting Mr. Justice Harlan in Beard v. United States, 158 U.S. 550, 15 S.C......
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