Mann v. Commonwealth

• Decision Date: 01 May 1908
• Citation: 110 S.W. 243
• Parties: MANN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

110 S.W. 243

MANN v. COMMONWEALTH.

Court of Appeals of Kentucky.

May 1, 1908

Appeal from Circuit Court, Breathitt County.

"Not to be officially reported."

James Mann was convicted of a crime, and he appeals. Reversed and remanded.

See 105 S.W. 1182.

W. H Blanton and O. H. Pollard, for appellant.

N. B Hays, Atty. Gen., D. B. Redwine, and Chas. H. Morris, Asst Atty. Gen., for the Commonwealth.

NUNN J.

Appellant was indicted for the crime fixed by section 1166 of the Kentucky Statutes of 1903 for the willful and malicious shooting at, with intent to kill, John L. Stidman, but without wounding him. The facts produced upon the trial, as they appear in the record, are, in substance, as follows: While crossing a street in Jackson, appellant was seen to take a pistol from one pocket and place it in another. The marshal of the city was informed of this fact, and he followed appellant into a store, where he was standing at a counter talking to a clerk, walked up to appellant's back, laid his band on his shoulder, and said to him: "Jim, give me that pistol." The marshal and another witness testified that he drew his pistol, turned, and pointed it at the breast of the marshal, who knocked it up, and it fired; the ball entering the ceiling of the room. The marshal left the room, and appellant was shortly thereafter arrested. Appellant testified that he turned with the intention of complying with the marshal's request, and in handing him the pistol the marshal became excited and knocked the pistol up, and it "went off" accidentally. Appellant introduced a witness who tended to corroborate him. This was all the evidence introduced.

The court instructed the jury on the offense described in the indictment, and coupled with it an instruction on self-defense, and then gave an instruction on the lower degree of the offense as defined in section 1242 of the Statutes of 1903, and coupled with it an instruction on self-defense, and then gave a separate instruction on self-defense. The fourth instruction was upon the question of a reasonable doubt. The court further instructed the jury that if they believed from the evidence, beyond a reasonable doubt, that defendant was guilty, but had a reasonable doubt as to the degree of the offense committed, they should find him guilty of the lesser offense as defined in instruction No. 2. The court erred in coupling with the instructions the law of self-defense, and in giving a separate instruction thereon. There was not a scintilla of proof that the marshal made any attempt to injure appellant, and appellant did not pretend that he was acting in self-defense when the shot was fired. His only plea was that he did not intend to shoot at the marshal, and that the firing of the pistol was an accident; and the court erred in failing to submit his defense to the jury. See the cases of ...