McCurry v. Commonwealth

• Decision Date: 24 October 1924
• Parties: MCCURRY v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

265 S.W. 630

205 Ky. 211

MCCURRY v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 24, 1924

Appeal from Circuit Court, Floyd County.

Jack McCurry was convicted of voluntary manslaughter, and appeals. Affirmed.

A. J May and Edw. L. Allen, both of Prestonsburg, and John D Carroll, of Frankfort, for appellant.

Frank E. Daugherty, Atty. Gen., and Gardner K. Byers, Asst. Atty Gen., for the Commonwealth.

THOMAS J.

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 No. 4 given by the court, was erroneous because (a) it left to the jury to determine whether the defendant, under the evidence, 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, 165 S.W. 669, and Nichols v. Commonwealth, 196 Ky. 706, 245 S.W. 518. 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 a reasonable judgment growing out of the appearances then and there present to him. Connor v. Commonwealth, 118 Ky. 497, 81 S.W. 259, 26 Ky. Law Rep. 398; Cook v. Com., 72 S.W. 283, 24 Ky. Law Rep. 1731; and Stephens v. Com., 47 S.W. 229, 20 Ky. Law Rep. 544. If, therefore, instruction No. 4 withheld from appellant the right to exercise his reasonable judgment in either of the matters referred to, it was and is erroneous, and the judgment should be reversed; otherwise not.

In order that the question may be plainly presented, we insert instruction No. 4, which says:

"Although the jury may believe and find from the evidence, beyond a reasonable doubt, that the defendant, Jack McCurry, in this county and before the finding of the indictment herein, shot and wounded J. M. Williams, from which shooting and wounding the said Williams died, yet, if they further believe and find from the evidence that at the time he did so shoot and wound the said Williams, he believed, and had reasonable grounds to believe, that the said Williams was then and there about to inflict upon him death or some great bodily harm, and there appeared to the defendant no other safe means of averting the then real, or to the defendant apparent, danger, then the court tells the jury the defendant had the right to use such means as was necessary or as reasonably appeared to him to be necessary, but no more, to ward off the then real or apparent impending danger, even to the taking of the life of the said Williams; and if you so believe you should acquit the defendant on the grounds of self-defense and apparent necessity."

It will be seen therefrom that the safety of the means which defendant might employ in averting the danger was such as "appeared to the defendant," without even the qualification "in the exercise of a reasonable judgment," and which made the instruction more favorable to the defendant than the practice required. It will further be observed that the "danger" upon which the defendant, under the instruction, was authorized to exercise his right of self-defense, was "the then real, or to the defendant apparent, danger," which demonstrates that the criticism of the instruction referred to relative to the character of danger is likewise unfounded.

But it is insisted that the instruction was erroneous in the use of the phrase, "but no more," thereby limiting the means which the defendant might employ to avert the real or apparent danger to him, and the case of Carroll v Commonwealth, 83 S.W. 552, 26 Ky. Law Rep. 1083, is relied on in support of the criticism. There is, however, a wide difference between the condemned instruction in the Carroll Case and the one given by the court in this one. The instruction in that case told the jury that the defendant "had the right to use such force at his command as was necessary, and no more, to avert the real or apparent danger," etc. This court rightfully held that the instruction "required the appellant to measure the force necessary to be...