Kinder v. Commonwealth

• Decision Date: 10 March 1936
• Parties: Kinder v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

263 Ky. 145

Kinder v. Commonwealth.

Court of Appeals of Kentucky.

Decided March 10, 1936.

1. Homicide. — Refusal of instructions that defendant had right to use all force reasonably necessary, including taking victim's life, to prevent victim from depriving defendant of his automobile and to prevent commission of felony, held not error, where defendant claimed to have shot in self-defense and necessity for shooting, otherwise than in self-defense, was not manifest.

2. Homicide. — Homicide is not justifiable to prevent a mere theft, since crime sought to be prevented must involve security of person, home, or contain an element of force or violence.

3. Witnesses. — Proper method of impeachment for prior contradictory statements was followed by prosecuting attorney where witness was questioned only as to those parts of extrajudicial examination that tended to serve purposes of contradiction and during questioning gave witness opportunity to examine transcript of examination, without reading entire transcript into evidence (Civil Code of Practice, secs. 597, 598).

4. Witnesses. — Extrajudicial statements of witnesses are competent for no other purpose than to establish contradictions and cross-examination thereon must relate to only material inconsistent statements that serve purposes of impeachment (Civil Code of Practice, secs. 597, 598).

5. Homicide. — In prosecution for killing person who had taken defendant's automobile, evidence that such person was an automobile thief or had that general reputation held inadmissible.

6. Homicide. — Where homicide is sought to be justified on ground of self-defense, evidence that deceased bore the general reputation of being a violent, quarrelsome, or dangerous man, or in habit of carrying concealed weapons is admissible.

7. Criminal Law. — Where bill of exceptions did not contain alleged improper statements of commonwealth's attorney during argument, they were not considered.

Appeal from Whitley Circuit Court.

DICKINSON & STEWART for appellant.

B.M. VINCENT, Attorney General, and W. OWEN KELLER, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Affirming.

Charlie Kinder appeals from a judgment of manslaughter with a penalty of twenty-one years in prison.

He and the deceased, Burt Gambrel, with Bill Jackson and Arthur Mayo, returned to Barbourville about 2 o'clock in the afternoon after riding around for some time in Kinder's automobile, a $65 Ford. Some, if not all, of the party had been drinking. There is evidence that Kinder gave Gambrel the ignition key and permission to use the automobile, as he had frequently done before. Kinder, however, denies this. He and Mayo went to get something to eat and later found that his car was missing from the place he had parked it. He informed some of the police officers that his automobile had been stolen, and asked if they had seen it. He indicated with profanity his belief that Gambrel had taken the machine, and said he would kill him if he caught him near the car.

Kinder went with Mayo and a young lady to Corbin looking for the machine and soon discovered it on Main street being driven by Gambrel, with Jackson by his side. Mayo blew his horn several times and, according to Kinder, forced the car to the curb where it stopped. However, it appears that Gambrel turned the corner of Sixth street and stopped close by, and that Mayo's car was stopped on Main street near the corner. The proof of the commonwealth is that Kinder went across to his automobile with a pistol drawn and told Gambrel to "get his damned self out of there," and then shot him through the open window of the door while Gambrel had both hands on the steering wheel and without his having said anything or made any demonstration. Kinder then went across the street to a filling station and asked where he could find an undertaker. One sitting there was pointed out, and he said to him: "I have got a fellow over there for you," or "I shot a fellow over there."

The defendant testified that he went over to the car and asked Gambrel what made him steal it, and Gambrel responded: "You ain't got no car," and hit at him with an automobile crank. He jumped back and as Gambrel started to come out the car door with the crank in his hand, he shot him when about four feet away. He shot, so he testified, because "he was fixing to kill me, I reckon, with that crank; I shot him to save my own self." Again he stated that he...