Oder v. Commonwealth
| Citation | 80 Ky. 32,4 Ky.L.Rptr. 18 |
| Parties | Oder v. The Commonwealth. |
| Decision Date | 22 January 1882 |
| Court | Kentucky Court of Appeals |
1. When a person has been merely threatened by even the most lawless character, it is no excuse for taking his life; but when a person has been threatened, waylaid, menaced, and assaulted with a deadly weapon, and he afterwards casually meets his foe, if from the character, antecedent conduct, and the circumstances of the meeting, and the presence of his enemy, he believes, and has reasonable grounds to believe judging thereof for himself, but at his peril, that his foe is about to inflict upon him loss of life, or great bodily harm, or will then and there carry into execution a design to kill him, or do him such harm, unless prevented, he is not bound to wait until actually assaulted, but may use such force as is necessary to avert the impending danger.
2. It is always a question for the jury to determine the reasonableness of the apprehended danger, and the actual belief of its existence by the person imperiled.
3. A person may leave his home to transact his legitimate business, and while so engaged, having reasonable grounds to believe, and in good faith believing, that he had been threatened, waylaid, and assailed with a deadly weapon, he has the right to carry arms openly, and to keep a lookout for his enemy, or procure information as to his movements in good faith, and only for the purpose of guarding himself from surprise, and if a meeting casually occurs, then the law of self-defense applies in the same manner as indicated.
4. But in no state of case is a person allowed to hunt down or seek another for the purpose of killing him.
5. No agreement of counsel will authorize an amendment of the record.
6. Appellant's objection to proof of what Conrad did, in his absence, was properly overruled.
7. The statements of appellant explanatory of certain of his actions, shortly before the killing, were properly excluded.
APPEAL FROM HARRISON CIRCUIT COURT.
HARRY WARD AND JOHN G. CARLISLE FOR APPELLANT.
The court erred in admitting the evidence showing that Conrad was at the depot when deceased arrived; and should have admitted the proof as to appellant's statements to witnesses immediately before the killing. Erred in refusing to give the old fourth instruction, which submitted all the facts and circumstances to the jury on the question of self-defense. The fourth instruction given by the court is error. It was the duty of the court to give to the jury the whole law applicable to the case.
P. W HARDIN, ATTORNEY GENERAL, W. C. P. BRECKINRIDGE, AND WEST & PERRIN FOR APPELLEE.
Can the law of homicide be made so plain as to be intelligibly given to the jury? Is a man justified in assassination based wholly upon past occurrences? Can one man, under any circumstances hunt down and kill another, and be innocent of crime? ( Phillips v. Commonwealth, 2 Duv., 328; Bohannan v. Same, 8 Bush; Kennedy v. Same, 14 Ib.; Parsons v. Same, 78 Ky.)
C. W. WEST FOR APPELLEE.
In the absence of instructions five, six, and seven, from the bill of exceptions, it is submitted that the " reasonable doubt" instruction is given more than once in this case.
The appellant, Alexander Oder, and Volney Hall, were brothers-in-law, and the evidence tends to show that Hall's daughter Mary staid with Oder some two years.
About the time she left his house he told her father that he had discovered improper relations between her and a young man who was laboring for Oder.
Hall disbelieved this statement, and imputed his daughter's misfortune to Oder, if any had befallen her.
He threatened to kill Oder, waylaid him, assaulted him with a pistol, and sought an ex-convict, who testifies that he offered him $500, which he refused to accept, to kill Oder.
The threats and lying in wait occurred several times, and were communicated to Oder, who armed himself with a shot-gun, which he carried about with him.
He and a man by the name of Conrad came once or twice to Cynthiana together. Each time Conrad was seen at the depot; and on the morning of Tuesday, the 31st of May, 1881, Conrad went to the depot, and Hall, who had been to Fayette county, got off of the train. Shortly after the train arrived, Oder went to a livery-stable where he had left his horse and buggy and shot-gun, and got the gun. He then proceeded to Pike street; Conrad came by the stable, went on to Pike street, and went down it on the opposite side from Oder, who came upon Hall in front of the post-office, asked him " if he was ready," and while he was turning, and before he got turned around, at a distance of fifteen or twenty feet, shot him through the heart, and after he fell, advanced a step or two, and fired the other load of the gun into his head, tearing away the skull, and leaving the brain exposed.
Conrad came across the street and said to Oder, " Come on, you have killed him." Oder immediately surrendered himself, and was subsequently indicted, and after having been tried once, which resulted in a hung jury, he was again tried, convicted, and sentenced to the penitentiary for the period of fifteen years. From that sentence he prosecutes this appeal.
On the trial the court instructed the jury first as to murder, second as to manslaughter, third with reference to the doubt as to the degree of the offense, and fourth in this language:
" If the jury shall believe, from all the evidence, that, previous to the...
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State v. Kellogg
...State vs. Frierson, 51 Ann. 706; State vs. Robinson, 52 Ann. 622. The counsel for defendant has called our attention to the case of Oder vs. Com., 80 Ky. 32, and we have found other cases from the same court (Carico vs. Com., 7 Bush 124, and Bohannon vs. Com., 8 Bush 88) which hold that und......
- Oder v. The Commonwealth