Golliher v. Commonwealth

• Decision Date: 05 October 1865
• Citation: 63 Ky. 163
• Parties: Golliher vs. Commonwealth.
• Court: Kentucky Court of Appeals

63 Ky. 163

Golliher vs. Commonwealth.

Court of Appeals of Kentucky.

October 5, 1865.

APPEAL FROM ADAIR CIRCUIT COURT.

JUDGE ROBERTSON DELIVERED THE OPINION OF THE COURT:

George W. Golliher, a soldier in the 13th Kentucky Regiment of Volunteers, being at a precinct in Adair county during an election held in a church, became, with some friends, engaged in an armed conflict with an antagonist party, in which he was disarmed and knocked down, and escaped to the woods; and, manifesting an intention to go home, went back for his horse; but, before he had mounted the horse to start home, he was informed that his party had triumphed and driven from the ground the adverse party; he then took his gun swung to his saddle, and with it went into the crowd in the church, declaring that he would "kill four d___d rascals;" and, after entering, shouldered the gun — the muzzle pointing behind him — when, almost instantly, it went off and killed Rowe, who was standing near and behind him, and who was one of the friends constituting his party in the previous rencounter.

For that homicide he was indicted, and the jury having found him guilty of murder, the court, overruling a motion for a new trial, sentenced him to be hung.

His appeal to this court rests chiefly on the ground of instructions to the jury alleged to be erroneous, and preventive of a fair trial on the facts and the law of the case.

If he had gone into the house for the felonious purpose of killing any person, and had he voluntarily fired his gun for the purpose of executing that malicious design, the killing of his friend Rowe, though unintended, would, nevertheless, have been murder. Or had he, without any such special purpose, voluntarily and recklessly fired in the crowd and killed Rowe, or any other person, he would have been guilty of murder. But if, in the first hypothetical case, the firing was accidental and involuntary, he would then have been guilty of manslaughter only. And even if thus carelessly carrying his gun into the crowd without any felonious design, he did not fire it, he would not have been guiltless, but the degree of his guilt would not have been near so high as murder or even intentional homicide; consequently, whatever may be the true phase of the case, he was not guilty of murder, unless he himself voluntarily fired the gun.

Tested by the facts and by the foregoing principles of the criminal law, some of the instructions given for the Commonwealth were erroneous, and some...