Riley v. Commonwealth
| Decision Date | 27 April 1893 |
| Parties | RILEY v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from circuit court, Campbell county.
To be officially reported.
Indictment of Thomas Riley for the murder of Charles J. Jungerman. From a conviction of manslaughter, defendant appeals. Reversed.
Butler Hawkins, Nelson & Desha and John S. Roebuck, for appellant.
W. J Hendrick, for the Commonwealth.
Upon an indictment against him for murder, Thomas Riley was convicted of manslaughter, and sentenced to confinement in the penitentiary for the term of five years. On appeal to this court he complains first of so much of instruction No. 4 as sought to restrict, and, as he alleges, destroy, his right of self-defense. After giving the usual instruction on that subject, the court added this modification: "If the jury, however, believe from all the evidence that immediately before the shooting, the defendant, by his own wrongful acts then and there done by him to the said Charles J. Jungerman, caused the said Jungerman to believe, and gave him reasonable grounds to in good faith believe, that the said Jungerman was in immediate danger of losing his life or of suffering great bodily harm at the hands of said defendant, and that said Jungerman, while so believing, used towards defendant such necessary or apparently necessary means as were at hand to protect himself from such impending peril, and in so doing put the defendant in danger or apparent danger, then the defendant may not avail himself of such danger or apparent danger to excuse himself in taking the life of said Jungerman." Even if this were a case in which an instruction of this character should have been given, the form of it is objectionable and misleading. It clearly intimates, if it does not in fact assume, that the acts of the defendant immediately before the shooting were "wrongful acts then and there done by him" to the deceased, and, moreover, the state of case in which he is deprived of the right to defend himself from impending danger is made to depend on the jury's belief from the evidence or a preponderance thereof, and not on the evidence to the exclusion of a reasonable doubt. Allen v. Com., 86 Ky. 642, 6 S.W. 645. But this is decidedly not a case in which such an instruction should have been given in any form. There is no evidence whatever to justify it. The defendant did not seek or bring on the difficulty or "provoke" it. So far as the proof on this trial shows, he...
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