Ewing v. Commonwealth

• Decision Date: 11 June 1908
• Citation: 129 Ky. 237,111 S.W. 352
• Parties: EWING v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

111 S.W. 352

129 Ky. 237

EWING v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 11, 1908

Appeal from Circuit Court, Warren County.

"To be officially reported."

Charles Ewing was convicted of murder, and appeals. Reversed.

Barker J., dissenting.

Nat A Porter and J. M. Simmons, for appellant.

N. B Hays and C. H. Morris, for the Commonwealth.

HOBSON J.

Charles Ewing was indicted in the Warren circuit court for the murder of Carrie Shields. He was found guilty as charged, and his punishment fixed at imprisonment in the penitentiary for life, and from this judgment he appeals.

Carrie Shields was 16 years old. According to the proof for the commonwealth, a girl named Girtie Ray was intimate with Charles Ewing. The killing occurred on Monday. On the previous Monday Carrie Shields had a fight with Girtie Ray; Charles Ewing being away at the time. On the following Saturday, when he returned, Girtie Ray told Charles Ewing that Carrie Shields had jumped upon her, and beat her up while she was drunk, and he said, "I wish I had seen her," or, "I will see her." The witness did not remember which. He bought a pistol, and on the following Monday morning the two women, Charles Ewing, and a man named Sam Chambers, all the parties being negroes, were at a saloon near the landing below Bowling Green. They drank in the saloon, and took whisky away with them. While they were there Ewing was heard to say, with an oath: "I would just as soon kill this bitch as not." The saloon keeper told him not to raise any racket there, and he said, "All right." They got into a boat and went across the river, and then to a man's house. As they were returning from the man's house to the river, when the party were walking quietly along the turnpike and apparently in a good humor, Ewing suddenly raised his pistol, and, without stopping, fired it, striking Carrie Shields, with whom he was walking, in the head, and instantly killing her. Sam Chambers and Girtie Ray were walking behind them, and witnessed the shooting. On the other hand, the proof for the defendant is that Sam Chambers had given his pistol to Carrie Shields, and, as they were walking along, she held it in his face, saying, "Don't you believe I'll shoot you?" He said, "No." She repeated this three or four times, and he each time said, "No." They did not stop walking. He pulled out his pistol, and threw it in her face, and said, as he testifies: "'No; I don't believe you will shoot me'; and I bore too hard on my trigger, and it went off and killed her. She had her pistol in my face, and I had mine in hers. We both were walking along with our pistols in each others faces, and my pistol went off. Q. Did you pull it off purposely? A. No, sir. Q. Did you think she was meaning to shoot you? A. No, sir. Q. What was her manner? A. She was laughing, and I thought she was playing. Q. And when you pulled your pistol what was your intention? A. I was playing myself when I pulled mine. Q. Did you mean to shoot her? A. No, sir." The defendant's testimony is in some measure corroborated by other witnesses. The court did not err in allowing the proof as to what the defendant had said when he heard that Carrie Shields had beaten up Girtie Ray when she was drunk, or in allowing proof of what he said at the saloon that morning. Although the parties were then apparently friendly, the jury were to judge whether the friendliness was apparent or real; and the proof, taken in connection with his buying the pistol and the other circumstances in the case, were sufficient to go to the jury on the question of malice. The court instructed the jury as to murder, involuntary manslaughter, and shooting by misadventure. He also gave an instruction on self-defense, but he gave no instruction on voluntary manslaughter; his view of the case being that the shooting was either murder or involuntary manslaughter.

There is no doubt that at common law it would have been a question for the court, and not the jury, whether this shooting was done with malice or not, and that at common law it would have been held murder. In 1727 the Chief Justice delivered the unanimous opinion of all the judges (in the case of Rex v. Oneby, 2 Stra. 766), as follows: "The judges are to determine what is malice or what is a reasonable time to cool; and they must do so upon the circumstances of the case. The jury are judges only of the fact, and we must determine whether it be deliberate or not. Hence it is that in summing up the evidence the judges direct the jury if you believe such a fact, it is so, if not, it is otherwise, and they find either a general or a special verdict upon it. There is no instance where the jury ever find that the act was done by malice, or that the party had or had not time to cool; but that must be left to the judges upon the circumstances of the case." In 2 Bishop on Criminal Law, § 676, it is said "An actual intent to take life is not a necessary ingredient in murder, any more than it is in manslaughter." Again, in section 680, it is said: "Ordinarily when one without legal excuse so uses a deadly weapon that the death of a human being results therefrom, the law either conclusively or as a violent presumption of fact infers malice aforethought, and adjudges the act to be murder." Under these authorities, it is manifest that at common law the killing in this case would be held to be murder upon the ground that malice was implied from the use of a deadly weapon under the circumstances shown. But the doctrine of implied malice does not obtain in Kentucky. Farris v. Commonwealth, 14 Bush, 362; Buckner v. Commonwealth, 14 Bush, 601; Trimble v. Commonwealth, 78 Ky. 176. Yet it does not follow that, because the doctrine of implied malice does not obtain in Kentucky, the shooting here, which would be murder at common law, is involuntary manslaughter. When we reject the doctrine of implied malice, the existence of malice is a question for the jury, and the offense which would otherwise be murder becomes voluntary manslaughter, where under the evidence the jury find as a fact that the killing was not done with malice aforethought. Accordingly it has been held in Kentucky in a long line of cases that, where one kills another by the wanton, reckless, or grossly careless use of firearms, the offense, if without malice aforethought, is voluntary manslaughter, although he had no intention to kill. Sparks v. Commonwealth, 3 Bush, 111, 96 Am. Dec. 196; Chrystal v. Commonwealth, 9 Bush, 669; York v. Commonwealth, 82 Ky. 360; Smith v. Commonwealth, 93 Ky. 318, 20 S.W. 229; Montgomery v. Commonwealth, 81 S.W. 264, 26 Ky. Law Rep. 356; Brown v. Commonwealth, 92 S.W. 542, 28 Ky. Law Rep. 1335. These opinions rest on the common-law principle that a man must be...