Mallicoat v. Commonwealth

• Decision Date: 22 November 1894
• Citation: 28 S.W. 151
• Parties: MALLICOAT v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

28 S.W. 151

MALLICOAT v. COMMONWEALTH.

Court of Appeals of Kentucky.

November 22, 1894

Appeal from circuit court, Whitley county.

"Not to be officially reported."

John Mallicoat was convicted of murder, and appeals. Reversed.

Crawford & Mason, for appellant.

W. J. Hendrick, for the Commonwealth.

PRYOR, J.

It is not necessary to discuss the facts of this case further than to say that the accused, when endeavoring to protect a woman, however lewd and unchaste she may have been, from the indecent and degrading assault made upon her by the deceased, shot and killed the deceased, as he alleges, and with proof conducing to show that fact, in self-defense. The court properly instructed the jury as to the law of self-defense, but added to that instruction "that, if they [the jury] believed the defendant had other safe, apparent, and available means of preventing the danger, he is not excusable." This addendum to the instruction should not have been made. The accused was being attacked by a dangerous and violent man, was protecting the woman from an assault the deceased was making upon her, and, under the circumstances, the doctrine of self-defense was properly placed before the jury, without the language used at the close of the instruction, that was certainly prejudicial to his substantial rights. Reversed, and remanded for a new trial.