Lightfoot v. Commonwealth

• Decision Date: 09 December 1882
• Citation: 80 Ky. 516,4 Ky.L.Rptr. 463
• Parties: Lightfoot v. The Commonwealth.
• Court: Kentucky Court of Appeals

80 Ky. 516

4 Ky.L.Rptr. 463

Lightfoot v. The Commonwealth.

Court of Appeals of Kentucky.

December 9, 1882

1. Instruction No. 4 was properly modified, for if appellant had so menaced and assaulted the deceased as to justify the belief on his part that appellant intended to assault and kill him, or do him great bodily harm, then deceased had the right to defend himself, and if, in making such defense, he was killed by appellant, the latter was as much guilty as if deceased had made no effort to save his life.

2. This instruction, even if it was error, could not have misled the jury, for the next instruction directed the jury that, in determining whether the appellant had reasonable grounds to believe that deceased, at the time he was killed, was then and there about to shoot and kill, or do appellant great bodily harm, they are not confined to the circumstances of the killing, but they may and should take into consideration all the proof in the case.

3. Whether appellant shot deceased with a pistol, or beat him upon the head, producing death, does not appear, but it is alleged that he killed deceased with a pistol held in his hands, and that it was willfully and maliciously done. It therefore was a public offense, and there being no demurrer the indictment must, after conviction, be held sufficient.

4. A change of venue may be had to a county not adjoining the one in which the offense was committed, if made upon the motion of the accused and consented to by the attorney for the state. It was too late, after the trial and conviction, to raise the question.

5. The statements contained in the affidavit showing the necessity for a change of venue are not jurisdictional facts.

APPEAL FROM NICHOLAS CIRCUIT COURT.

ROSS &amp KENNEDY AND W. LINDSAY FOR APPELLANT.

1. The court gave an instruction with the modification that was not only in conflict with the law of self-defense, as set forth in the previous instruction, but assumed a state of case not warranted by the proof. (Bohannon v. The Commonwealth, 8 Bush, 482; Terrell v. Same, 13 Ib., 257.)

2. The indictment is defective. (3 Heiskill, 150; 5 Caldwell, 650; 1 Duv., 140; White v. Commonwealth, 11 Bush, 178; 1 Met., 503.)

3. The Nicholas circuit court had no jurisdiction. A change of venue was ordered from Rowan county, which does not adjoin Nicholas. (Sec. 1, art. 4, chap. 12, Gen. Stat.; sec. 276 Crim. Code.)

P. W HARDIN, ATTORNEY GENERAL, FOR APPELLEE.

No brief.

OPINION

PRYOR JUDGE:

On the 7th of March, in the year 1881, in a village called Cross Roads, in the county of Rowan, the appellant, M. F. Lightfoot, shot and killed Joseph McDermott, for which he was indicted, tried, and convicted, and his punishment fixed at confinement in the state prison for nine years. He has appealed from the judgment of conviction to this court. The appellant and the deceased were both young men, and lived in the little village of Cross Roads.

Appellant was about twenty-two years of age, and the deceased had not attained his majority. A bad feeling had existed between them for many months prior to the hostile meeting that terminated in McDermott's death.

The real origin of the difficulty seems not to have been developed by the proof, and all that is learned of the feud between them is, that each one of them, on almost every occasion where they happened to meet, was ready for an assault or a deadly combat, making threats to kill, and on more than one occasion McDermott drew his pistol, and at another time shot twice at the appellant, but in both instances, or in almost every instance, the proof conduces to show that the appellant was as anxious for the difficulty as the deceased.

It appears that the appellant was generally under the influence of liquor, and we have no doubt, from the facts of this record, that its effect upon a mind naturally excited at the appearance of his adversary, led to the tragedy resulting in the death of McDermott.

The testimony is very conflicting as to the acts and conduct of both parties for months prior to the killing, and the mind is impelled to the conclusion, after a careful reading of the record, that the one was as much in fault as the other.

On the day of the fatal shooting, the appellant was in Pitman's saloon, and saw the deceased approaching the saloon, or coming in that direction. He remarked at the time: " There comes the d--d little son of a bitch; watch me step out and kill him; " or, let me go out and kill him. This was a few minutes before the shooting, and the substance of the language used is given by more than one witness.

The appellant left the saloon, and stepped on the platform in front of it. The decased continued to cross the street, and came on to the same platform. The appellant then placed his hand on the shoulder of the deceased, and said to him: " You ordered me out of the yard the other day,' and Joe (the deceased) said nothing, and defendant (appellant) repeated it, and added, ‘ I suppose it is all right, or you wouldn't have done it,’ and he said ‘ Yes, he reckoned it was." The appellant then said, " I am as good a man as you," and Joe said, " I am as good a man as you." Judge Irving then ordered them off the platform on to the street, and the appellant told him " to get away from before him, or he would lend him one." Appellant then stepped down into the public street, and said, " I am ready for him now." The defendant had cocked his pistol at the time this was said, and, according to the testimony of one of the witnesses for the Commonwealth, the deceased fired the first shot; but there is testimony conducing to show that the first fire was from the pistol of the appellant. The witness who says the deceased fired first, states that when he (the witness) first came up, the appellant had his hand in the right pocket of his overcoat, and drew his pistol about half way out, and cocked it.

It is plain, we think, from the testimony, although the deceased was armed when he crossed the street, that his purpose was not to molest the appellant, and but for the aggressive movement of the appellant, and his fixed determination to bring about the difficulty, this killing would not have taken place. The appellant was under the influence of liquor at the time, and the moment he saw his adversary, recollecting their previous troubles, he expressed his purpose to leave the saloon, and slay him. It was not his fear of the deceased, or the belief that the latter would kill him, that caused him to announce this purpose, because, when he left the saloon, and the deceased came on to the platform, the appellant laid his hand upon deceased's shoulder, and reminded him of the insult he had offered him when requiring him to leave his father's yard. If it was the purpose of the deceased to shoot the appellant, every opportunity was afforded him as he crossed the street, and if no such opportunity was presented it clearly appears, from the conduct of the deceased, that he had no intention of assaulting the...