Risner v. Com.

• Decision Date: 28 September 1951
• Citation: 242 S.W.2d 623
• Parties: RISNER v. COMMONWEALTH.
• Court: United States State Supreme Court — District of Kentucky

Page 623

242 S.W.2d 623

RISNER v. COMMONWEALTH.

Court of Appeals of Kentucky.

Sept. 28, 1951.

Wm. Melton, C. A. Noble, Hazard, for appellant.

A. E. Funk, Atty. Gen., Zeb. A. Stewart, Asst. Atty. Gen., for appellee.

MILLIKEN, Justice.

The appellant, Fritz Risner, was found guilty of the murder of Bill Campbell, which occurred in Perry County shortly before dawn on Sunday, May 7, 1950, and his punishment fixed at life imprisonment. The fact that appellant shot and killed Bill Campbell with a twenty-two rifle at the time and place stated in the indictment was admitted. Mrs. Hammonds was Risner's widowed sister, and he was staying with her in the building where she and Campbell, who also lived there, had intended to open a restaurant.

The grounds urged for reversal are: (1) That the verdict was motivated by passion and prejudice; (2) that the trial court erred in not giving an instruction on self-defense; and (3) that the court erred in not giving a peremptory instruction for the jury to return a verdict of not guilty.

The trouble started after the return home of the appellant, his sister, Mrs. Hammonds, and Bill Campbell from a social evening visiting several places where beer was sold and where they had drunk some. According to Risner, upon their return home Campbell abused Mrs. Hammonds verbally and struck her; that he (Risner) tried to pacify Campbell and was rewarded for his efforts by a blast of threatening profanity; that he (Risner) then started out in the automobile of two other companions of the evening, Jane McIntyre and James Gokey, to search for a deputy sheriff to take charge of Campbell and, after that search failed, they drove on in search of Mae Hammond's sons whom he then informed of the situation. The Hammonds boys headed to the site of the trouble, but Risner and his companions got there first. Risner ran into the home where he had left Campbell and Mae Hammonds, found no one, and then in his own words: 'As I come back out they was a 22 rifle setting there. I picked that rifle up and comes back out with the rifle. Well, when I come back out with the rifle I had to come down the steps--steps on each side of this big wide porch. When I come out the steps why Bill and my sister--I seen they was about ten or fifteen steps from the corner of the house. The front of the house. So he had hold of my sister and Sis was crying and I heard him say 'God damn you. I'm going to kill you,' and seen Bill had started to do that, and when he said it he had her by this hand and had his fist drawed up like that (indicating), and when he says 'God damn you, I'm going to kill you,' that's when I fired the gun.'

Risner gave Campbell no warning whatever.

Jane McIntyre and James Gokey were out of the state at the time of the trial, so did not testify. Suffice it to say that there was testimony, including that of Mae Hammonds, which supported Risner's story. On the other hand, there was testimony to the effect that Mae Hammonds bore no evidence shortly after the killing of having been beaten; that she did receive some bruises in an automobile accident which occurred while rushing Bill Campbell to the hospital after the shooting. The court submitted the case to the jury under proper instructions, including one which directed the jury to find Risner not guilty if they believed from the evidence that Risner shot and killed Campbell because he 'believed and had reasonable grounds to believe that Mae Hammonds was then and there in danger of death or the infliction of some great bodily harm at the hands of Bill Campbell and that it was...