Farris v. Commonwealth
| Decision Date | 03 December 1878 |
| Citation | 77 Ky. 362 |
| Parties | Farris v. Commonwealth. |
| Court | Kentucky Court of Appeals |
APPEAL FROM GARRARD CIRCUIT COURT.
G. W. DUNLAP, JR., FOR APPELLANT.
W. D. HOPPER ON SAME SIDE.
THOS. E. MOSS, ATTORNEY-GENERAL, FOR APPELLEE.
R. M. & W. O. BRADLEY ON SAME SIDE.
JUDGE HINES DELIVERED THE OPINION OF THE COURT.
Appellant was convicted of the murder of Robert Land, and his punishment fixed by the jury at death. From that verdict and the sentence of the court thereon he appeals.
On the 27th day of May, 1878, near the town of Lancaster, Robert Land, a white man, very much intoxicated, had a difficulty with some negroes; and while he was attempting to draw his pistol to shoot one of them, and being held by a negro named Leavell, the appellant, a colored man, approached Land and said to Leavell, "Turn the God damned son of a bitch loose; let him go to hell." To this Land said, "Are you talking to me, you son of a bitch?" Appellant replied, "Yes," when Land turned toward him and drew or attempted to draw a pistol. Appellant struck him with a small walking-cane and ran, and as he did so Land shot at him without hitting him, and, according to some of the witnesses, threw a rock. Appellant went some seventy-five yards down the road to the house of another negro and said, "Give me your gun, quick; I want to shoot a white man up the road who shot at me," and, having obtained the gun, ran back in the direction of where he left Land, and when within some fifty yards of the place he said, "God damn you, where are you?" and fired upon Land and shot him through the body, from which he died in twenty minutes. While appellant was gone for the gun Leavell had succeeded in putting Land on his horse, with a view of getting him to go home. Some of the witnesses say that when appellant came back with the gun and called out to Land, "God damn you, where are you?" Land turned toward him and presented his pistol. The evidence is that appellant was about two minutes in getting the gun and returning to the vicinity of the difficulty. The bill of evidence does not disclose whether there had been any previous ill feeling between appellant and Land, or whether, in fact, they had ever before met. Quite a number of negroes witnessed the killing, but it appears that no white person other than Land was present.
Objection is made to the first, second, and fourth instructions given for the Commonwealth. They undertake, among other things, to give the jury the law of self-defense as applicable to the facts of this case. They appear to be much more favorable to appellant than the law will justify. The first tells the jury that they must acquit if they find that appellant "believed and had reasonable grounds to believe that he was in imminent danger of loss of life or of suffering great bodily harm at the hands of said Land." They were not told, as they should have been, that the right to kill was dependent upon the further fact that there were no other apparently safe means of escape from the then impending danger.
The instructions given at the instance of counsel for appellant are as favorable to him as the law will permit, and give to him the full benefit of the law of self-defense and of manslaughter.
Nor do we think the court erred in refusing to give instruction "A" asked for by appellant's counsel. The court had already told the jury what facts must be established by evidence, that excluded every reasonable doubt, before they could convict, and these instructions were so drawn as to make it clear to the most ordinary mind that they should not convict if they had a reasonable doubt as to whether the evidence established any one of these facts.
Complaint is made that counsel for the Commonwealth was permitted to argue to the jury the law of manslaughter, as stated by himself, and not as embraced in the instructions. The bill of exceptions says that these statements were made in response to a statement by counsel for appellant, as to his understanding of the law upon the same subject. It appears that counsel for appellant objected, privately to the judge, to the statement of the law by counsel for the Commonwealth, and that the judge said he thought the argument legitimate, but that if counsel desired, he would tell the jury that they must be governed entirely by the law as given them in the written instructions. To this suggestion from the court appellant's counsel made no response, and nothing was said to the jury about the matter by the court. We are not prepared to say that the argument of counsel for the Commonwealth, under the circumstances, was improper, but if it was, we are of the opinion that no sufficient objection was made and preserved.
It is also objected that there was no arraignment of the appellant. The affidavit of appellant appears to that fact, but the bill of evidence shows that an arraignment was waived, and that appellant pleaded not guilty. The record is conclusive of this point, and prevents any inquiry into its correctness.
It does not appear that appellant could have been prejudiced by the court permitting counsel for Commonwealth to talk with the witnesses after they were sworn and separated, as the same permission was granted to and exercised by counsel for appellant. The Commonwealth's witness talked to by its counsel was afterward talked with by counsel for appellant, and introduced in his behalf.
As to whether appellant was guilty of murder or manslaughter, or whether he was guilty of either offense, was a question exclusively for the jury, upon proper instructions as to the law given by the court. We have no power to inquire whether the court erred in overruling a motion for a new trial, as we have decided in Terrell v. Commonwealth, 13 Bush; Kennedy v. Commonwealth, 14 Bush, 340, and in Frazier v. Commonwealth, MS. opinion, Nov. 21, 1878.
The third instruction, given at the instance of the counsel for the Commonwealth, is complained of by counsel for appellant upon the ground that without modification it was calculated to and probably did mislead the jury. It reads:
"Malice is implied by the law from any cruel and unnecessary act done by one person to another, and from the deliberate and unnecessary use of a deadly weapon."
A careful consideration of this instruction, when applied to the facts of this case, has led us to the conclusion that the objection to it is well taken. The proposition as stated does not appear to accord with the reason and philosophy of the law as found in our statutes and Code, nor, in fact, to have been approved by the later adjudications in other states.
Punishable homicides, under the General Statutes of this state, are described and provided for as follows:
Section 180 of the Criminal Code provides, that
It is further provided in sections 225, 238, 239, and 258,
That the court must instruct the jury in writing on the law applicable to the case;
That, if there be a reasonable doubt of the defendant being proved guilty he is entitled to an acquittal;
That, if there is a reasonable doubt of the degree of the offense committed, the conviction shall be of the lower degree;
That, when there is a verdict of "guilty," or "for the Commonwealth," the jury shall fix the degree of punishment to be inflicted, unless it be fixed by law.
In reference to the burden of proof the correct rule is well stated in Wharton's American Criminal Law, section 707, as follows:
(Payne v. Commonwealth, 1 Met. 375.)
When this instruction is tested by these rules of law, applied to the facts as already stated, and considered in connection with other instructions given, we readily see that it most probably misled the jury to the prejudice of the substantial rights of the appellant. The jury were told in the sixth instruction that if they believed the killing was done, not in malice nor in necessary self-defense, but in sudden heat and passion, they must find the accused guilty of manslaughter. These two conflicting instructions told the jury, in effect, that if the killing was cruel and unnecessary, and done with a deadly weapon, the law implied the existence of malice, and that therefore the killing was willful murder; although they might believe that it was done in sudden heat and passion or in self-defense. An unnecessary or a cruel killing is not always willful murder. If from all the facts and circumstances there was an apparent necessity that the accused should take the life of his antagonist in order to preserve himself from death or great bodily harm, then about to be inflicted, he is justified on the ground of self-defense; and a killing with a deadly weapon will be excusable when done in apparently necessary self-defense, or may be manslaughter when done in sudden heat and passion. This conflict could have been avoided by telling the jury that they might infer malice from the circumstances of the killing, but such an instruction would be objectionable because of the undue prominence that would be given to the fact of killing with a deadly weapon.
When it is considered that, in testing instructions, every deduction...
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