Hart v. Commonwealth

• Court: Kentucky Court of Appeals
• Writing for the Court: HOLT, J.
• Citation: Hart v. Commonwealth, 85 Ky. 77, 2 S.W. 673 (Ky. Ct. App. 1887)
• Decision Date: 22 January 1887
• Parties: HART, JR., v. COMMONWEALTH.

2 S.W. 673

85 Ky. 77

HART, JR., v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 22, 1887

Appeal from circuit court, Fayette county.

Watts Parker and Geo. Denny, Jr., for appellant, Hart, Jr. P. W Hardin, for the Commonwealth.

HOLT J.

This is a conviction for voluntary manslaughter. In a difficulty between the appellant, Levi Hart, and John Veal, a by-stander, who was in nowise engaged in it, by the name of Charles Waller, was shot, and instantly killed. A jury have found that the appellant did it. If so, it was undoubtedly unintentional upon his part, and done in shooting at Veal who was also then killed. The case, therefore, turns upon whether the conduct of the appellant in so shooting was excusable. If he was first attacked by Veal, and acted only in self-defense, then it was excusable homicide.

The testimony is very conflicting as to whether the appellant or Veal began the conflict. Some witnesses testify that the one and some that the other, made the first offensive movement and fired the first shot. The appellant offered to prove that, on the day previous to the killing, Veal said that he would elect his man at the election which was to occur the next day, or kill the appellant. This threat was not communicated to the accused, and the testimony was rejected. It is urged that it was competent, by way of showing who brought on the difficulty. The two men were opposing each other, being for different candidates. The threat substantially fixed a time when, in a certain event, it would be carried out. The difficulty did then occur; the event named was then in progress; and the issue now being, who was the aggressor, is the evidence of the uncommunicated threat by the deceased competent to illustrate it? The question has not been heretofore directly decided by this court, and, indeed, we have little authority to guide us to a correct conclusion.

In the case of Cornelius v. Com., 15 B. Mon. 539, the prisoner, who was being tried upon the charge of murder, introduced evidence of threats which had been communicated to him, and which had been made by the deceased. He then offered to prove other threats upon the part of the accused, made a few days before the killing, and which had not been communicated to the prisoner. The lower court excluded them, but this court said: "We think that this testimony should, under the circumstances in this case, have been admitted. It tended to confirm the other evidence, that Hopson had made threats against the prisoner, and to counteract a presumption of fabrication by the witnesses who gave that testimony. Besides, Hopson's intention to make an attack on the accused was an important matter, as well as the belief of the existence of such an intention on the part of the prisoner."

In the case just cited the admissibility of the uncommunicated threats was based upon the fact that they tended to confirm the communicated threats, and also evinced the intention of the deceased, and illustrated the question whether the one or the other was the aggressor. In the case now before us no communicated threats were proven; hence the naked question is in hand, whether...