Morrison v. Commonwealth

• Citation: 74 S.W. 277
• Parties: MORRISON v. COMMONWEALTH.
• Decision Date: 19 May 1903
• Court: Court of Appeals of Kentucky

74 S.W. 277

MORRISON v. COMMONWEALTH.

Court of Appeals of Kentucky.

May 19, 1903

Appeal from Circuit Court, Franklin County.

"To be officially reported."

William Morrison was convicted of manslaughter, and appeals. Affirmed.

Jas Andrew Scott and B. G. Williams, for appellant.

C.J Pratt and M. R. Todd, for the Commonwealth.

HOBSON J.

Appellant William Morrison, was indicted for the murder of Alex Dean he was convicted of manslaughter, and his punishment was fixed at confinement in the penitentiary for 11 years. The proof shows that Ida Dean, a sister of the deceased, had borrowed an umbrella on the afternoon of the day of the homicide, she promising to return it that evening. About half past 8 o'clock she came up the street with the umbrella, and, meeting George Turner, asked him if he had seen Morrison. They went on together, and soon met Alex Dean, who took hold of his sister and told her to go home, upbraiding her for being out looking for Morrison. There is a conflict of evidence as to what followed. The proof for the commonwealth is that Alex Dean went along the street with his sister, pushing her along about 90 feet, when she stopped, declining to go any further, and about this time Morrison, seeing them, ran down to where they were on his tiptoes, and stabbed Dean in the back; that he immediately fell to the ground, uttering no sound except a groan, and died in a few minutes. The proof for the defendant is that Morrison heard some one say that Alex Dean was beating his sister, and ran out to where they were, putting his hand on Alex Dean's shoulder, and saying, "You can't beat her where I am;" that Dean immediately drew a pistol, and said with an oath, "I will kill you both;" that Morrison caught the pistol, and they clinched, and, as they fell, he stabbed Dean in the back with his knife. This proof is made by Morrison himself; and also by Ida Dean, who testified in his behalf, and by Turner. No pistol was found on Dean's person, or on the ground where he fell, nor is it shown by any other proof that he had a pistol. The proof shows that Dean was smoking a pipe, and that when he and his sister stopped at the place where the homicide took place, and she declined to go any further, she struck him with the umbrella and knocked the fire out of his pipe. This pipe was found on the ground after the homicide, and it may be that this is what Dean had in his hand when Morrison came up. The point at which the difficulty occurred was near the center of the square, and not well lighted by the street lamps.

The court allowed the commonwealth to prove by both Morrison and Ida Dean, on cross-examination, in effect, that Morrison was, and had been for some time past, living in improper relations with Ida Dean. This evidence was objected to, but was properly admitted, for it explained the circumstances of the parties and illustrated their motives. The evidence also went to the interest of the witness Ida Dean, and to show bias.

Morrison offered to prove by a number of witnesses that the deceased was by character a violent and dangerous man, who usually carried deadly weapons. He also offered to show by several witnesses that the deceased had threatened to kill him, and that these threats had been communicated to him. This evidence was excluded by the court. In Roberson on Criminal Law, § 240, it is said: "If the deceased was a man of violent and dangerous character, more prompt and decisive measures of defense would be justifiable than if he were of a peaceable disposition. Hence, in cases of homicide, evidence that the deceased was a violent, quarrelsome, turbulent, dangerous, or vindictive man, or was in the habit of carrying concealed weapons, is admissible to show, or as tending to show, that defendant acted in self-defense, or under such circumstances as would have naturally caused a man of ordinary reason to believe that he was, at the time of the killing, in imminent danger of losing his life or of suffering great bodily harm at the hands of deceased. *** But evidence of the character here spoken of is not admissible where the defendant was the aggressor, nor until a proper foundation is laid by showing an overt act or hostile demonstration toward defendant by deceased before he was killed." See, also, to same effect, Payne v. Commonwealth, 58 Ky. 379; Riley v. Commonwealth, 94 Ky. 266, 22 S.W. 222; Commonwealth v. Hoskins (Ky.) 35 S.W. 284. In Roberson on Criminal Law, § 223, it is also said: "Upon the issue of self-defense, or where there is a doubt concerning the defendant's motive in committing the homicide, whether he was actuated by malice or believed that he was in danger from deceased, he may prove that deceased had made threats against his person or life, as tending to show that he was in peril at the time of the homicide, or that he had reasonable grounds upon which to believe that he was in such peril, provided such threats were communicated to defendant before the killing. *** But where there is no evidence of an overt act or hostile demonstration on the part of the deceased, evincing a present purpose to carry the threats into execution, nor any doubt that defendant was the aggressor, evidence of previous threats by deceased against the defendant, although they were communicated to defendant, is not admissible." See, also, to same effect, 3 Rice on Evidence, 362; Wharton, Criminal Evidence, § 757; 9 Am. & Eng. Ency. of Law, 673.

It will thus be seen that the admissibility of the evidence in question depends upon whether the defendant was the aggressor in the difficulty; for if he knew that deceased had threatened his life, and was a violent and dangerous man, so much the more reason would there be that the defendant should not be the aggressor in the difficulty. The court, after giving the usual instructions on murder, manslaughter, and reasonable doubt, instructed the jury as follows on self-defense: "If the jury believe from the evidence that the defendant, at the time he cut and killed the said Alex Dean, if he did cut and kill him, believed, and had reasonable grounds to believe, that the said Alex Dean was then and there about to take his life or inflict on him great bodily harm, and there appeared to him, in the exercise of a reasonable judgment, no other safe means...