Day v. Commonwealth

• Decision Date: 16 February 1923
• Citation: 247 S.W. 951,197 Ky. 730
• Parties: DAY v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

247 S.W. 951

197 Ky. 730

DAY v. COMMONWEALTH.

Court of Appeals of Kentucky.

February 16, 1923

Appeal from Circuit Court, Leslie County.

Charles Day was convicted of murder, and he appeals. Reversed.

L. D Lewis, J. M. Muncy, and J. B. Miniard, all of Hyden, and C K. Calvert, of Pineville, for appellant.

Chas I. Dawson, Atty. Gen., and Thos B. McGregor, Asst. Atty Gen., for the Commonwealth.

MOORMAN J.

Appellant was convicted in the Leslie circuit court of killing Robert Whitehead and sentenced to confinement in the state penitentiary for 10 years. He has appealed, contending that the court did not instruct the jury on the whole law of the case, and that the verdict of the jury is palpably against the evidence.

The first ground mentioned pertains to the instruction on self-defense, which ought to have included, it is said, a definition of the defendant's right to defend his family and home against the assaults of deceased and to avert any danger to them, real or to him apparent, even to the extent of killing the deceased. Eversole v. Commonwealth, 95 Ky. 623, 26 S.W. 816, 16 Ky. Law Rep. 143, Watson v. Commonwealth, 132 Ky. 46, 116 S.W. 287, and Tucker v. Commonwealth, 145 Ky. 84, 140 S.W. 73, are relied on by counsel as supporting the contention. It is the rule, as announced in those cases and many others, that one has the right to defend his family against the assaults of another. But it has never been held, and was not held in any of the cases cited, that the failure to define that right in the instruction on self-defense is error where, as in this case, it was embodied in a separate instruction. Perhaps it is better to incorporate the definition into the instruction on self-defense, as pointed out in Hoover v. Commonwealth, 192 Ky. 490, 233 S.W. 1042, but the failure so to do in the case at bar was not error in view of the fact that that theory of the case was presented to the jury in a separate instruction.

The second contention goes to the sufficiency of the evidence. In July, 1922, Whitehead, Levi Boggs, Henry Lewis, and Sylvania Turner, all of whom had been drinking, left the latter's place to go to Whitehead's house over a route that passed through defendant's yard. Lewis and Boggs were considerably under the influence of whisky. In passing through the yard it was necessary to open two gates only a short distance apart. The way between the gates was a bridle path, but it had been used by the public for a great many years. There was a small porch in front of defendant's residence and a path leading from the porch to the path between the two gates. The evidence shows that when Whitehead came to the first gate he either lifted the latch or tore it off and went into the yard, followed by Boggs; that he turned his mule loose and proceeded in the direction of the other gate, but stepped off the path between the two gates into a path leading to defendant's porch, and when within a very few feet of the porch, the distance ranging from 2 to 12 feet according to the evidence, he was shot by defendant. Whitehead then walked out of the yard and lay on a rock for two or three hours until he was removed to the home of his father, where he died the next day. Boggs and Lewis left almost immediately after the shooting, apparently unaware of the serious nature of Whitehead's injury.

Defendant was a deputy sheriff. He testified that he was sitting on his front porch with his wife and child; that Boggs and Whitehead appeared at his gate, and the latter, without attempting to unlatch it, threw himself against it and broke the latch that he called defendant a vile name and turned his mule loose in the yard, whereupon the witness told him to pass through the yard in an orderly way; that Whitehead replied he would go through as he damned pleased and, with an open knife in his hand, proceeded toward the porch on which defendant was sitting; that as he came toward defendant the latter begged him to go on through and not have any trouble, but he continued to approach defendant with the knife in his hand, and when within two or three feet of the porch defendant fired twice; that he then turned and walked through the open gate. This version of the shooting is largely corroborated by undisputed facts disclosed by the record. Several witnesses saw the open knife lying at the edge of the porch. It was shown that the deceased had threatened the life of defendant, and only two or three weeks before the shooting defendant had left a public meeting in the community and returned to his home to avoid trouble with the deceased. Boggs and the...