Hopkins v. Commonwealth

• Decision Date: 06 June 1930
• Citation: 234 Ky. 676
• Parties: Hopkins v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

234 Ky. 676

Hopkins v. Commonwealth.

Court of Appeals of Kentucky.

Decided June 6, 1930.

1. Homicide. — Refusal of accused's requested peremptory instruction was not error, where there was some evidence accused used more force than necessary to defend himself against attack.

2. Homicide. — Self-defense instruction held not erroneous, under evidence, in not including right to kill in defense of another.

It was contended that instruction should have been broadened so as to allow accused to kill deceased in defense of H., but there was no evidence tending to show that H. was ever in any real or apparent danger. Accused did not claim that he shot in defense of H., but testified that he shot deceased because he believed he was in danger of death or great bodily harm at hands of deceased, and admitted that he knew that H. had left the scene.

3. Homicide. — Instruction on self-defense held erroneous as implying that accused was required to seek safety in flight.

The instruction required belief by accused that the only reasonable means of escaping or warding off danger of death or great bodily harm, or such apparent danger, was to shoot and wound deceased, to authorize acquittal.

4. Homicide. — Instruction on self-defense held erroneous in using word "reasonable" instead of "safe" in describing means of warding off danger.

5. Homicide. — Error in instruction on self-defense implying accused must seek safety in flight and use reasonable means of escaping held prejudicial.

Appeal from Floyd Circuit Court.

JAMES & HOBSON, A.J. MAY, EDWARD L. ALLEN, W.W. WILLIAMS and O.C. HALL for appellant.

J.W. CAMMACK, Attorney General; GEORGE H. MITCHELL, Assistant Attorney General; CLAUDE P. STEPHENS and JOHN W. CAUDILL for appellee.

OPINION OF THE COURT BY JUDGE REES.

Reversing.

The appellant, Frank Hopkins, was indicted by the grand jury of Floyd county for the murder of Bill Puckett. On his first trial the jury failed to agree, and on his second trial he was convicted of manslaughter and his punishment fixed at confinement in the penitentiary for 21 years.

Puckett was shot and killed by appellant on Saturday night, September 15, 1928, near a church where services were being held. Appellant was in the church where services were being conducted before the killing occurred. Church services had progressed to the point where the minister was delivering a sermon when a man by the name of Arnett, who was intoxicated, came in and sat down on a bench near some young women. He created quite a disturbance, and John Holbrook, who was sitting near the front of the church, went to him and escorted him from the building. Several other persons left the church at this time, among them being appellant and Turner Prater, a justice of the peace. Holbrook took a quart bottle of whisky from Arnett and handed it to Prater, who poured out most of the contents of the bottle. Someone suggested that the appellant, Frank Hopkins, should taste the liquid in the bottle in order to determine whether or not it was whisky, which he did. About this time Puckett appeared on the scene and walked a short distance up the road with Arnett. He was in a very angry frame of mind, and began making threats against Holbrook. His wife and sister were in the church, and some one sent for them. They came out and undertook to take Puckett home — one of them taking hold of his right arm and one of his left arm — but he started back towards the crowd with an open knife in his hand, and inquired concerning the whereabouts of Holbrook. Someone told Holbrook to go into the church, and he did leave, and went as far as the church steps about 25 steps away. In the meantime Puckett had dragged his wife and sister to the point where appellant, Prater, and one or two others were standing. He was still brandishing the knife, and finally succeeded in breaking loose from his wife and sister. As he did so his left shoulder struck appellant and knocked him down. At the time he lunged against Hopkins he had the open knife in his hand and Hopkins was cut in the chest. It does not appear that this wound was serious.

It is the theory of the commonwealth that Puckett accidentally lunged against appellant when he broke away from his wife and sister and was making no attack on him, but appellant claims that the deceased intentionally struck at him with the knife. Appellant fell on his back, and, as he rose, he fired one shot at Puckett, and after a very short interval, fired four or five shots. Several witnesses for the commonwealth testified that both appellant and Puckett fell, and that appellant got up and fired several shots. Some of the witnesses said it was dark and that they could not see Puckett, but that it appeared that all the shots were fired toward the ground. Appellant explains this by saying that, after the first shot was fired and he had gotten up, Puckett advanced toward him in a crouched position with the open knife in his hand, and that his pistol was necessarily pointed downward.

As grounds for reversal, it is urged that the evidence was not sufficient to authorize a submission of the case to the jury; the verdict is flagrantly against the evidence; the argument of the commonwealth's attorney was prejudicial to appellant's substantial rights; the court erred in failing to instruct the jury that appellant had the right to shoot deceased in defense of John Holbrook; and the instruction on self-defense is erroneous.

While the evidence is far from satisfactory, we are not prepared to say that the peremptory instruction asked for by appellant should have been given, since there was some evidence from which the jury might have concluded...