Gordon v. Commonwealth

Decision Date25 January 1910
Citation124 S.W. 806,136 Ky. 508
PartiesGORDON v. COMMONWEALTH.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Boyle County.

"To be officially reported."

George Gordon was convicted of manslaughter, and appeals. Affirmed.

Robert Harding, C. C. Bagby, and J. W. Rawlings, for appellant.

James Breathitt, Atty. Gen., and Tom B. McGregor, Asst. Atty. Gen for the Commonwealth.

LASSING J.

Appellant was indicted in the Boyle circuit court, charged with the murder of Robert Brewer by shooting him with a pistol. Upon his plea of not guilty he was tried, found guilty, and his punishment fixed at 21 years' confinement in the state penitentiary. To reverse the judgment predicated upon this verdict he prosecutes this appeal. The grounds relied upon for reversal may be grouped into two classes: First, errors occurring during the progress of the trial in the admission and exclusion of evidence, and errors in instructing the jury; and, second, errors occurring after the trial, and during the pendency of the motion for a new trial.

The facts, as gathered from the voluminous bill of evidence, are as follows: Appellant and the man he killed were neighbors living upon adjoining farms in Boyle county, Ky. and had been on friendly terms up to the time of the killing, which occurred on November 28, 1908. On this day, appellant and his brother William had been to Junction City on road wagons hauling lumber, and were returning home. A young man or boy named Owens was driving the team belonging to William Gordon on the return trip, and William was riding with appellant in his wagon some distance behind the boy. When the Owens boy reached his mother's home, where he lived, and which was about four miles out of Junction City, he stopped the wagon on the roadside, unhitched the team, and tied the horses to the fence and went on home. Shortly thereafter, appellant and his brother came up in appellant's wagon and stopped with appellant's wagon nearly, if not quite, blocking the road. Robert Brewer had also been to town that day, and was returning home. With him in his wagon were George Hafley and William Johnson. Following behind Brewer's wagon came Denny Gordon in another wagon. Brewer drove his wagon up to where the Gordon wagons had stopped in the road, and here the difficulty occurred. The facts as thus far detailed are agreed to, but from this on the testimony of the witnesses for the commonwealth differs so materially from that of the witnesses for the accused that it cannot be reconciled. This necessitates the giving of each theory.

Appellant testifies, and in the main is supported by his brother William, that when Brewer came up to where their wagons had stopped in the road he appeared in an ugly mood from drinking, and at once began cursing appellant, and demanded of him to get his wagon out of the road; that appellant thereupon spoke pleasantly to him, and at once drove his wagon up so that Brewer had ample room to pass; that after he had done this, and Brewer did not drive on, appellant asked him why he did not drive by, and offered, if Brewer wanted him to do so, to give the other half of the road; that at this offer on his part Brewer, with an oath, threw down his lines, leaped from his wagon, reached with his right hand toward the ground, and, as he arose from his stooping position, he was seized by both William Gordon and William Johnson, both of whom he threw or knocked down, and immediately began striking appellant over the head; that appellant backed away from him, and was against the fence and could go no further, and that he then shot him. On the other hand, the commonwealth shows, by the testimony of the witnesses George Hafley, Denny Gordon, and Lou and William Johnson, that when Brewer drove up behind appellant's wagon he said to appellant, "Get out of the road, or go on home so that I can pass," to which appellant replied, "I have given you half the road, you G___ d___ s___ of a b___, and if you want anything else I will give you half of that." Brewer then said, "I don't ask you no odds," and appellant answered this statement in kind, and, being upon the ground, advanced towards Brewer's wagon, with his whip in one hand and a pistol in the other, and as he so advanced he cursed Brewer, and struck out or toward him with the whip. About this juncture appellant again called Brewer a s___ of a b___, and Brewer said he would not or could not stand that, and got out of the wagon and stooped as though to pick up something, when he was seized by William Gordon and William Johnson. He jerked loose from the one and pushed the other back, and struck out and perhaps hit appellant, who was coming at him with his pistol leveled on him, and cursing him as he came. Just then the pistol fired, and Brewer fell, mortally wounded, and died in 15 or 20 minutes. The bullet entered in front and passed entirely through the body. Deceased was unarmed, save for a pocketknife which was found closed in his pants' pocket. Appellant was drinking. While these witnesses differ on many points, as to the exact location of the teams, wagons, etc., they substantially agree on the main questions as to what was said and done. In addition to this testimony of the eyewitnesses the commonwealth proved by other witnesses that, while coming along the road from Junction City to the place where the difficulty occurred, appellant was boisterous, cursing, and swearing and shooting off his pistol, and declaring that he had killed one man and could or would kill another, some one or any one who crossed his path, or words to that effect.

On this evidence should the trial court have given a peremptory instruction? This court has often held that if there is any evidence, however slight, tending to connect the accused with the commission of the crime in any of its degrees, the case should go to the jury. Vowells v. Commonwealth, 83 Ky. 193; Patterson v. Commonwealth, 86 Ky. 313, 5 S.W. 387; Commonwealth v. Murphy, 109 S.W. 353, 33 Ky. Law Rep. 141; Spencer v. Commonwealth, 122 S.W. 800. If the testimony of these four witnesses is to be believed, the accused practically held deceased up in the road, and deliberately sought and provoked the difficulty by cursing him and attempting to strike him, and then, when he offered to protect himself, shot him down. The facts proven by the commonwealth are far from such as would authorize a peremptory instruction.

This brings us to a consideration of the correctness of the instructions given; for, it being the duty of the court in criminal cases to give the whole law of the case as warranted by the facts proven, it is immaterial what instructions were asked for or offered. If the instructions given do not accurately state the law, or the court fails to give an instruction on a point of law upon which the defendant is entitled to have the jury instructed, the case must be reversed; otherwise not. The court gave the following instructions:

"Gentlemen of the jury:
"(1) If you believe from the evidence beyond a reasonable doubt that in Boyle county, and before the finding of the indictment, namely, January 6, 1909, the defendant, George Gordon, willfully, feloniously, and with malice aforethought killed Robert Brewer by shooting him with a pistol from which shooting said Brewer presently died, then you will find the defendant guilty of willful murder, and fix his punishment at confinement in the penitentiary for and during his natural life, or at death.
"(2) However, if you believe from the evidence, beyond a reasonable doubt, that in this county, and before the finding of the indictment, the defendant, in sudden affray, or in sudden heat and passion, upon a provocation reasonably calculated to excite the passions of the defendant beyond the power of his control, willfully killed Robert Brewer by shooting him with a pistol, from which shooting said Brewer presently died, then you will find the defendant guilty of voluntary manslaughter, and fix his punishment at confinement in the penitentiary for a term of not less than 2 years nor more than 21 years.
"(3) If you believe from the evidence, beyond a reasonable doubt, that the defendant has been proven guilty under instruction No. 1 or No. 2, yet entertain a reasonable doubt as to the degree of the offense, then you will find him guilty of voluntary manslaughter, and fix his punishment at confinement in the penitentiary for a term of not less than 2 nor more than 21 years.
"(4) Although you may believe from the evidence to the exclusion of a reasonable doubt that the defendant shot Robert Brewer with a pistol, from which shooting said Brewer presently died, yet, if you further believe from the evidence that when he did so he believed, and had reasonable grounds to believe, that he was then in danger of death, or some other great bodily harm about to be inflicted upon him by said Brewer, then he had the right to use such means as in reason appeared to him to be necessary to avert the impending danger, real, or to him, apparent, even to the extent of so shooting and killing said Brewer, and in this event you will return a verdict of not guilty.
"(5) Although you may believe from the evidence, beyond a reasonable doubt, that in this county and before the date of the finding of the indictment the defendant shot Robert Brewer with a pistol, and thereby killed him, and you further believe from the evidence that when he did he believed, and had reasonable grounds to believe, that he was then in real or apparent impending danger of death, or some other great bodily harm, about to be inflicted upon him at the hands of said Brewer, yet, if you further believe from the evidence, to the exclusion of a reasonable doubt, that when the defendant did not believe,
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