McCurry v. Commonwealth
| Decision Date | 24 October 1924 |
| Parties | McCurry v. Commonwealth. |
| Court | Kentucky Court of Appeals |
v.
Commonwealth.
Page 212
A. J. MAY, EDW. L. ALLEN and JOHN D. CARROLL for appellant.
FRANK E. DAUGHERTY, Attorney General, and GARDNER K. BYERS, Assistant Attorney General, for appellee.
OPINION OF THE COURT BY JUDGE THOMAS — Affirming.
Upon his trial in the Floyd circuit court under an indictment charging him with murdering Dr. J. M. Williams, the appellant, Jack McCurry, was convicted of voluntary manslaughter and punished by confinement in the penitentiary for a period of five years, and by this appeal he seeks a reversal of the judgment upon three grounds, which are: (1) erroneous instructions; (2) failure of the court to postpone the trial until the arrival of a witness, and (3) that the verdict is flagrantly against the evidence, each of which grounds we will consider in the order named.
In support of ground (1), it is argued that the self-defense instruction, which was number 4 given by the court, was erroneous because (a), it left to the jury to determine whether the defendant, under the evidence,
Page 213
was actually in danger and whether he properly chose the safety of the means which he employed to avert the danger to him from the hands of the deceased, when the proper submission should have been for defendant to determine the danger as it reasonably appeared to him and to select the safety of the means in the exercise of a reasonable judgment from the surrounding facts and circumstances; and (b), that it limited the force or means which defendant might employ or use, in averting the danger to him to that which was actually necessary in the estimation of the jury, and not what might have appeared to the defendant to be necessary in the exercise of his reasonable discretion or judgment. In support of these two criticisms, numerous cases from this court are cited and relied on and we suppose there are none to the contrary, since both the danger to the appellant and the means which he employs to avert it need not be actual in the one instance or absolutely necessary in the other: for if the danger was only apparent to the defendant in the exercise of a reasonable judgment, it would be sufficient to permit him to act in his self-defense, and in doing so he may employ such means to avert it, either actual or apparent, as appears to him in the exercise of a reasonable discretion to be necessary. Two comparatively recent cases from this court so holding, in which many others are referred to, are Sizemore v. Commonwealth, 158 Ky. 492, and Nichols v. Commonwealth, 196 Ky. 706. Indeed the right of the defendant to judge of the danger, as it appears to him in the exercise of a reasonable discretion, is so well settled both in this and other courts as to require no extension of this opinion or further citation of cases to support it. It is equally well settled that the safety of the means to be employed in averting the real, or to the defendant apparent, danger must be such as appeared to him in the exercise of a reasonable judgment or discretion to be necessary and need not be limited to such as would actually be necessary, as for instance flight, which necessarily follows from the right of defendant to judge of the extent of the danger and the means employed to avert it in the exercise of...
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