Shannahan v. Commonwealth

• Court: Kentucky Court of Appeals
• Writing for the Court: Pryor
• Citation: Shannahan v. Commonwealth, 71 Ky. 463, 8 Bush 463 (Ky. Ct. App. 1871)
• Decision Date: 13 December 1871
• Parties: Shannahan v. Commonwealth.

71 Ky. 463

Shannahan v. Commonwealth.

Court of Appeals of Kentucky.

December 13, 1871.

APPEAL FROM JEFFERSON CIRCUIT COURT.

A. H. FIELD, For Appellant.

JOHN RODMAN, Attorney-General, For Appellee.

CHIEF JUSTICE PRYOR DELIVERED THE OPINION OF THE COURT.

The appellant, Matthew Shannahan, was indicted in the Jefferson Circuit Court for the murder of C. W. Montgomery, and under the indictment was tried by a jury and found guilty as charged, and by the judgment of that court condemned to be hung, and from that judgment he prosecutes this appeal.

It will be necessary to recite, in substance, the facts proven upon the trial in order to determine the propriety of the refusal by the court below to give certain instructions asked for by counsel for the appellant, and the giving of instructions in lieu thereof.

It appears from the evidence that the appellant, on the 22d of August, in the year 1870, about twelve or one o'clock of that day, announced his intention of going to see Montgomery (the deceased) for the purpose of getting his (appellant's) stone-hammer, saying "that Montgomery had taken it away." The appellant had been informed that the deceased was working for a man by the name of Shanks. He went to the grocery of Shanks and inquired for Montgomery, and was told that he was in the woods at work some half mile distant from the house. While at Shanks's he took a dram, purchased a quart of whisky, and started in the direction of the woods where Montgomery was at labor, and upon his arrival there found Montgomery and a man by the name of Applegate at work. The appellant and the deceased, as the witness Applegate states, met each other in a friendly manner, and engaged in conversation relative to deceased having previously worked for him, and appellant offered to employ him again. The three drank the quart of whisky, and late in the evening returned to Shanks's grocery, where they took another drink and had the quart-bottle refilled. Applegate left them late, and says that when he left they were still friendly and drinking. The appellant and deceased left Shanks's house after night, and went in company to Brown's residence, where deceased was boarding, and reached there about half past eight o'clock at night. From Shanks's house to Brown's is a distance of about five hundred yards. Upon their arrival at Brown's he refused to permit the appellant to remain all night; but upon the suggestion of the deceased, that if he persisted in refusing he would sleep with appellant in the stable, Brown consented that the appellant might remain all night. The two then entered the family-room of Brown, placed the quart-bottle of whisky on the mantel, with about one third of its contents gone, and conversed with Brown fifteen or twenty minutes. They then left by a stairway for their bed-room upstairs, and when they reached the floor above Brown says he heard a scuffle and fall, and Montgomery cried out, "You have killed me." He hurried to the room and met the appellant coming down the stairway with a knife in his hand, and witness ordered him not to leave. He made his escape through the back door leading to the rear of witness's premises, and was in a few days afterward arrested. The witnesses found Montgomery badly cut upon the arms, legs, and other parts of the body, and his entrails protruding. He lived but a short time; stated that Shannahan had killed him without cause. The deceased had no weapons upon his person, and so far as the circumstances indicate offered no resistance. The evidence establishes the fact that the appellant when sober is a quiet, peaceable, and industrious man, but when drunk is boisterous, unruly, and always when in that condition ready to attack friend or foe. There is no doubt from the proof but that both the appellant and the deceased were under the influence of liquor at the time of the killing.

The appellant's counsel relies in his argument upon five different grounds for the reversal of this case:

1. Because the verdict is against the evidence.

2. An improper effort upon the part of the attorney for the commonwealth to convict the accused.

3. That the special judge had no power to pronounce the judgment upon the verdict.

4. That the court misinstructed the jury.

5. That the court refused properly to instruct the jury.

This court has no power to revise a judgment of conviction for either the first, second, or third grounds relied upon by counsel, and the only question presented by the record is, did the court err in refusing the instructions asked for by appellant's counsel, and in giving other instructions in lieu thereof? Counsel insists that the instructions given in this case are multitudinous, misleading, and inapplicable. While instructions given to a jury upon such an issue as is here presented should be as plain and concise as possible, and no more in number than the case requires, still the defendant's counsel asked twenty-two instructions, and the court, in lieu of and in explanation of these instructions, gave about one half the number, the most of which contain the law of the case, and were certainly not prejudicial to the appellant.

The effort upon the part of the defense, from the legal propositions submitted to the jury, was to reduce the offense from murder to manslaughter by reason of appellant's intoxicated condition at the time of the killing. The propriety of the instructions on this branch of the case will alone be considered, as all the other instructions given by the court are substantially correct.

Instruction No. 9 given by the court in behalf of the appellant is as follows: "That if at the time of the alleged commission of the crime...