Redmond v. Commonwealth

• Decision Date: 06 June 1899
• Citation: 51 S.W. 565
• Parties: REDMOND v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

51 S.W. 565

REDMOND v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

June 6, 1899

Appeal from circuit court, Nicholas county.

"Not to be officially reported."

Jordan Redmond was convicted of manslaughter, and he appeals. Reversed.

Winfield Buckler, John J. Williamson, and John F. Morgan, for appellant.

Hanson Kennedy and W. S. Taylor, for the Commonwealth.

WHITE J.

The appellant was indicted in the Nicholas circuit court for the crime of willful murder by shooting James Tyler, and upon trial was convicted of manslaughter, and his punishment fixed at five years in the penitentiary. From that judgment this appeal is prosecuted.

It is insisted for the appellant that the trial court erred in admitting as evidence certain parts of the dying declaration of Tyler. The objectionable part is: "I was sent by Henry Hutchings to Jordan Redmond's oyster saloon to get some fish. *** I had no pistol when I was shot." The latter statement was excluded in chief, but admitted in rebuttal. The first statement was admitted in chief. Appellant testified in his own behalf, and stated that, a short while before the shooting of Tyler, appellant and deceased had had a difficulty, each claiming the ownership of a whisk broom. On cross-examination the commonwealth was permitted to ask the accused concerning the ownership of the broom, as to where he got it, and how he got it. In rebuttal the commonwealth was permitted, over objection, to contradict the appellant as to how and where he got the broom, and to show by witness in rebuttal that the appellant committed a trespass in taking the broom, or actually stole it. To this action of the court appellant objected and excepted, and now complains. The shooting is shown to have taken place while the appellant was in his own house, a restaurant, in which he also resided, and while deceased Tyler was in the act of entering the door, at about 9:30 o'clock p. m., though before the place of business was closed for the day. Appellant complains that the trial court refused to instruct the jury that appellant, being in his own house, had the right to stand his ground, and take such steps as were apparently necessary to protect himself and family from impending danger.

We are of opinion that there was no error in admitting the statement of deceased as dying declarations. The statement that he had no pistol was only admitted in rebuttal. The statement that deceased was sent to appellant's restaurant for fish is admissible to show deceased's intention in going there at that time. If this was true, it was not for the purpose of renewing the difficulty.

We are of the opinion that there was no error in the instructions given. They state the law of this case. While the jury is not told that accused, being in his own house, may stand his ground, they are also not told that accused must, if safe means of escape from the impending danger existed, have taken such means,...