Murphy v. Commonwealth

• Decision Date: 11 November 1924
• Citation: 205 Ky. 493
• Parties: Murphy v. Commonwealth.
• Court: Kentucky Court of Appeals

Page 493

205 Ky. 493

Murphy v. Commonwealth.

Court of Appeals of Kentucky.

Decided November 11, 1924.

Appeal from Boyd Circuit Court.

WAUGH & HOWERTON for appellant.

FRANK E. DAUGHERTY, Attorney General, and CHAS F. CREAL, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE CLAY — Reversing.

This is an appeal from a judgment based on a verdict finding appellant guilty of manslaughter, and fixing his punishment at five years' imprisonment in the penitentiary.

The facts are these: The deceased, Dan McKnight, was an uncle of appellant, and, some time prior to the homicide, appellant was required to appear before the grand jury and give evidence of McKnight's violation of the prohibition act. On the afternoon of the homicide McKnight left home with James Blair and John Buckley and they went up a hollow to a coal bank. While they were near the tipple, appellant and Alvin Hutchison came along the hill en route to a point above the coal bank. On seeing appellant John Buckley called him and told him that he wanted to see him. Appellant hesitated, but on being called again he went to a point near the coal tipple to meet Buckley. While talking with Buckley, McKnight broke into their conversation and asked appellant why he had been telling damn lies on him. Appellant replied that he had not told any lies, but McKnight insisted that he had, and repeatedly cursed and called appellant vile names. During the quarrel McKnight walked up on the bank in front of appellant. According to James Blair, a witness for the Commonwealth, the deceased did not have his pistol in his hand, nor attempt to harm appellant, but he admits that he had started to leave and his back was turned toward the combatants. When the shooting was over, however, he found McKnight's pistol lying by his side. According to appellant, the deceased, during the altercation, was moving around him in a circle so that the deceased was on one side and the embankment on the other. When about eight feet away the deceased drew his pistol from his pocket and appellant then fired. Alvin Hutchison testified that he saw there was going to be trouble and turned and walked away. At that time McKnight had his hand on his hip pocket, but he did not see McKnight put his hand in his pocket. During the shooting he was looking at appellant. There was further evidence of threats made by the deceased against appellant.

In addition to instructions on murder, manslaughter, self-defense and reasonable doubt, the court gave the following instruction:

"The jury are further instructed that although you may find and believe from the evidence that the deceased, Dan McKnight, previous to the occasion when he was shot and killed had some previous difficulty or difficulties with the defendant, Ed. Murphy, and then or at other times threatened to kill the defendant, or do him some great bodily harm, that these acts or threats and conduct of the said Dan McKnight did not justify the defendant in shooting said McKnight at the time and on the occasion in question unless the defendant then and there believed, and had reasonable grounds to believe, that the said Dan McKnight was then and there about to kill him, or inflict upon him some other great bodily harm.

"And the jury are further instructed that although they may believe from the evidence that on the occasion in question when the said Dan McKnight was shot and killed that he used in and in the presence of the defendant...