Mickey v. Commonwealth

• Decision Date: 03 September 1873
• Citation: 72 Ky. 593
• Parties: Mickey v. Commonwealth.
• Court: Kentucky Court of Appeals

Page 593

72 Ky. 593

Mickey v. Commonwealth.

Court of Appeals of Kentucky.

September 3, 1873.

APPEAL FROM OLDHAM CIRCUIT COURT.

WALTER C. WHITAKER, CRADDOCK & TRABUE, JOHN L. SCOTT, For Appellant.

JOHN RODMAN, Attorney-General, For Appellee.

JUDGE LINDSAY DELIVERED THE OPINION OF THE COURT.

The bill of exceptions shows that it contains all the instructions given. It states that after the testimony was heard "the court, on motion of the commonwealth's attorney, instructed the jury as follows, to wit." Then followed six instructions. If either of the instructions given was omitted, then the statement that the jury was "instructed as follows" is not true. The language preceding the instructions given for the appellant is substantially the same. It is, "The court instructed the jury as follows, on motion of the defendant." We must indulge the presumption that the statements in the bill of exceptions are true, and therefore that all the instructions given by the court are before us.

The indictment charges that Mickey, in conjunction with Looney and Smith, committed the crime of murder. The theory of the prosecution is that Mickey either participated in the killing of Reardon, or was present and aided and abetted Smith and Looney, or one of them, in the commission of the homicide.

Instruction No. 1, given for the commonwealth, which is based upon the idea that appellant shot and killed Reardon, is unobjectionable.

Instruction No. 2 is in these words: "If the jury believe from the evidence, to the exclusion of a reasonable doubt, that either John Looney or Dan Smith did the killing as charged in the indictment, and that Ben Mickey was present, or near enough to give assistance, and aided or abetted or assisted or incited or advised or encouraged the person doing the killing, they should find him (Mickey) guilty as charged in the indictment."

It is to be observed that the guilt of appellant is not made to depend upon whether or not he maliciously aided, assisted, or encouraged the party or parties who did the killing; nor does the instruction in unmistakable terms convey the idea that to convict Mickey of murder it was necessary that the commonwealth should show that the party or parties committing the homicide were actuated by malicious motives.

It is true that this conclusion might be deduced by considering the indictment in connection with the instruction, as the jury were told that they must believe beyond a reasonable doubt that Looney or Smith "did the killing as charged in the indictment," and that Mickey aided, assisted, etc. But if it be improper in civil actions to allow the jury to consider and pass upon the legal effect of the pleadings, as has been frequently held by this court, as in the cases of Tipton v. Triplett (1 Met. 570) and of Allard v. Smith (2 Met. 297), it is certainly of much more doubtful propriety in a criminal prosecution to compel the jury to consider the indictment in order that they may ascertain the meaning of the court's instructions.

But waiving this point, inasmuch as Mickey may be guilty of murder, and those actually committing the homicide guilty only of manslaughter, the objection to the instruction first stated is fatal.

It may be that Smith and Looney, or one of them, maliciously shot and killed Reardon, and thereby committed murder, and that Mickey aided, abetted, or assisted in the commission of the offense, and yet it does not necessarily follow that he is also guilty of the same crime.

"If several persons are present at the death of a man, they may be guilty of different degrees of homicide, as one of murder and another of manslaughter; for if there be no malice in the party striking, but malice in an abettor, it will be murder in the latter, though only manslaughter in the former." (1 East. P. C., chap. 5, sec. 121, p. 121.) So likewise it may...