Gross v. Commonwealth

• Decision Date: 06 March 1945
• Citation: 299 Ky. 518
• Parties: Gross v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

299 Ky. 518

Gross v. Commonwealth.

Court of Appeals of Kentucky.

March 6, 1945.

1. Homicide. — In prosecution for murder by shooting, conflicting evidence on issue of self-defense was for jury.

2. Homicide. — Burden was on accused in homicide case to present such proof as would satisfy jury that defense of self-defense was sound.

3. Homicide. — Where accused testified that after homicide by shooting he walked toward police headquarters and before he got there he was arrested, testimony of a police officer that when accused was placed under arrest he apparently tried to get his gun and that two officers took gun out of accused's belt, was not prejudicial under circumstances.

4. Homicide. — Instruction that if jury believed from evidence that when defendant shot deceased, defendant believed and had reasonable ground to believe that deceased was about to kill him or inflict great bodily harm, defendant was justified in using any means at hand to protect himself, was not erroneous for alleged failure to incorporate therein words expressing defendant's right to shoot to protect himself against danger, real or apparent to him, and not as situation appeared to jury.

5. Homicide. — An ordinary self-defense instruction in homicide case improperly omitted words "and that it was necessary or believed by defendant to be necessary in the exercise of * * * to be necessary to shoot" in order to avert a danger, real or to the defendant apparent.

6. Homicide. — A self-defense instruction in homicide case was prejudicially erroneous in not including right of defendant to protect himself from deceased and another with whom deceased was acting in concert and who started and participated in the difficulty.

Appeal from Franklin Circuit Court.

Marion Rider for appellant.

Eldon S. Dummit, Attorney General, and H.K. Spear, Assistant Attorney General, for appellee.

Before William B. Ardery, Judge.

OPINION OF THE COURT BY MORRIS, COMMISSIONER.

Reversing.

On the night of October 30, 1943 (Hallowe'en night), appellant shot and killed Paul Hellard. The homicide occurred on the south side of Broadway in Frankfort. Upon an indictment charging murder he was tried in January, 1944, the jury being unable to reach a verdict. On a second trial the jury found him guilty of voluntary manslaughter, fixing his punishment at confinement for a period of ten years. On appeal from a judgment in conformity with the verdict, it is contended that the trial court erred to the prejudice of appellant (1) in admitting incompetent and prejudicial evidence; (2) in overruling motion for a continuance, and (3) in giving an instruction on self-defense which was erroneous and prejudicial to the substantial rights of appellant.

There is no disagreement as to the following facts: Gross and his sixteen year old son lived on Broadway not far from the point where the homicide occurred. Gross had lived in Frankfort about four months. He was formerly a native of Morgan County, where some years ago he had been convicted of a felony; he was paroled, and fearing to return to his home county he went to Owen County where he worked for about a year; he then came to Frankfort where he obtained employment. He admitted that he had carried the gun intermittently because he had been threatened by certain persons in Morgan County, whom he had seen while in prison, and after he came to Frankfort. He admitted that he kept it loaded and had reserve ammunition, and was apparently willing to put the gun to use if the occasion arose.

On the day of the homicide Gross worked until noon; ate his noon meal and went up into town, where he bought some clothing. He returned home about 9 p.m., and not finding his son started out to locate him. He walked west on Broadway to St. Clair where he was told that the son had gone to a show. He turned back on Broadway on the south side toward home. Between St. Clair and Lewis Streets he overtook Paul Hellard, Louise Hayes, John Doss and Jane Carrier, walking two abreast, Hellard and his girl in front. He did not know any of the four and none of them knew him. Appellant walked behind the party until they had crossed Lewis Street, going eastwardly. From this point on, and as to just what occurred, there is considerable conflict. We shall give appellant's version first.

Appellant said that after stepping on the curb at the corner of Lewis Street the Carrier girl said "they are soaping the windows." Appellant said, "Yes, it looks like they are;" nothing further was said until a few steps had been taken, when the girl said, "Give me some soap", and he replied, "Girl I ain't got any soap. There ain't no place to buy soap at this time of night." The girl then said: "Looks like you need a cake to wash your face with." Still walking, John Doss said to Gross, "Are you trying to make something out of it?" and Gross said, "I ain't trying to make something out of it. One word brought on another. I didn't want any trouble; I stepped behind them; looked like they was going into the street, and they were going to drag me back out in the street, and I stepped two steps back up to the wall, and he (Doss) said `you are trying to make something out of this', and I said `I don't know none of you people; I don't want no trouble.'" It was at this point he said that Paul Hellard hit him behind the left ear and knocked him back against the wall to his knees, and when he got up he pulled his pistol from his belt and shot him, as Hellard started toward him again. At that time Doss was standing right in front of him and Gross was about two feet from the wall of the building. He said that one of the girls, standing between him and Doss, said: "Go on John and let him alone, he aint done nothing." After he fired the shot he stood there for a few seconds, turned and walked back to Lewis Street, then to a point nearly in front of the police station, and officers came across the street and arrested him, as he says without any resistance on his part. Gross said that he fired the shot because "I was expecting them to rob me after they hit me and knocked me down; he knocked me down and was stepping in toward me, when I started up and shot him to protect myself."

Appellant was fully corroborated by witness Woodring, who was present, and apparently knew all the parties, except Gross. He was partially corroborated by an affidavit of an absent witness who was present at the scene. Mrs. Howser, the county jailer, testified that after Gross was brought to jail he complained of pain about his head. She examined his head, and said he had a knot, a bruised place on his head behind his ear.

Edward Dean for the Commonwealth testified that he was near the scene at the time of the shooting. He was in a truck, and as he turned in Broadway he saw a couple of men standing near the corner facing each other. One man backed up two or three steps, "walked backwards, and pulled a pistol and shot." He learned later the man who had shot was Gross; he did not know any of the other people.

Mrs. Oma Stiles lived over a garage on the north side of Broadway, almost opposite Sawyer's restaurant near which the difficulty occurred. She was in a front room looking across the street. She saw the man who had the pistol standing right in front of the man who fell on the sidewalk. She said that immediately before the shooting neither advanced toward the other. The man who fell was standing with his hands in his pockets. She identified...