Crowe v. Commonwealth

• Decision Date: 23 March 1906
• Citation: 91 S.W. 663
• Parties: CROWE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

91 S.W. 663

CROWE v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 23, 1906

Appeal from Circuit Court, Powell County.

"Not to be officially reported."

James H. Crowe was convicted of assault and battery, and he appeals. Affirmed.

J. M Stevenson and S. T. Davis, for appellant.

PAYNTER J.

The appellant was indicted for an assault and battery alleged to have been committed by unlawfully beating Allen Osborne with a hoe. The evidence conduces to prove that while Osborne was on his own land engaged in a conversation with a brother of the appellant, the latter approached them with a hoe in his hand and said he would kill Osborne, who appealed to him as he came nearer not to move on him with a hoe. The appellant continued to advance with the hoe, and when near Osborne the latter drew his pistol and fired at the appellant, but about the time he did so the appellant had reached him and struck him with a hoe, and again did so two or three times rendering him unconscious. The appellant claims that he struck Osborne with the hoe in self-defense.

The court gave an instruction on self-defense, but qualified it as follows: "But this instruction is given subject to this modification, if the jury believe from the evidence beyond a reasonable doubt that before Osborne attempted to assault the defendant or inflict personal injury upon him, if the jury believe Osborne attempted to do either, the defendant began the difficulty by advancing upon Osborne with a hoe held in a threatening manner, the jury should not acquit the defendant under this instruction."

Counsel urge that the instruction should not have been modified because the facts did not authorize it. The appellant admitted in his testimony on the trial of the case that he approached Osborne with a hoe in his hand, and that he struck him with it. The testimony of the commonwealth conduces to prove that the appellant did approach Osborne with an uplifted hoe after making a threat to kill him, and continued to move upon him, though warned not to do so, until he got within striking distance, about which time Osborne fired at him with his pistol. If these statements are true, it is a case where it was very appropriate to tell the jury that the appellant was not entitled to be acquitted upon the ground of self-defense, for he began the difficulty. It is urged that the modification is objectionable, because the court did not also give the counterpart that if the accused in good faith abandoned the fight, and was forced to renew it, his right of self-defense existed. There was no evidence upon which to base such a clause in the instruction. The appellant did not admit that he began the difficulty, nor did he claim that he had at any time abandoned it. The case of Young v Commonwealth, 42 S.W. 1141, 19 Ky. Law Rep. 929, is cited by counsel for appellant to support his contention. In that case the court expressly said that after the defendant assaulted the deceased they were separated, and the deceased was carried some 10 or 12...