Sizemore v. Commonwealth

• Decision Date: 22 April 1914
• Citation: 165 S.W. 669,158 Ky. 492
• Parties: SIZEMORE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

165 S.W. 669

158 Ky. 492

SIZEMORE v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 22, 1914

Appeal from Circuit Court, Leslie County.

Logan Sizemore was convicted of voluntary manslaughter, and he appeals. Reversed for new trial.

Cleon K. Calvert, Lewis & Lewis, and R. B. Roberts, all of Hyden for appellant.

James Garnett, Atty. Gen., and Overton S. Hogan, Asst. Atty. Gen for the Commonwealth.

MILLER J.

Logan Sizemore was indicted for the murder of Grant North; and having been convicted of voluntary manslaughter and sentenced to serve a term of from 2 to 21 years in the penitentiary, he appeals.

The tragedy occurred on Christmas day, 1913, at the home of Nick Turner, the father-in-law of North. Sizemore lived on White Oak creek, in Leslie county, and Turner lived on the same creek, about a mile above Sizemore's residence. A number of persons, including North, had assembled at Turner's for the purpose of joining in the holiday amusements. About noon on Christmas day, Nick Turner and Hiram Hensley went to Sizemore's home and ate dinner with him. Turner then invited Sizemore and Hensley to go home with him, saying they would rob a bee tree and have some honey for a Christmas treat. The three men then proceeded to Turner's residence. Sizemore and North had not been on goods terms for some time; and, on the day before Christmas, Sizemore had said to North's wife that he intended to kill North, on sight. When the three men approached Turner's home, and Sizemore saw North standing in the yard, he said to Turner and Hensley that he would not go in because of North's presence, and the fact that he and North were not on good terms. Turner, however, insisted that Sizemore should go into the house, saying that the house was his, and that Sizemore would not be molested while there. North and several other persons were shooting firecrackers in the yard.

A narrow porch extended along the front of Turner's residence; the entrance to the porch being at its lower end. A short time before, Mrs. Turner, who was sitting on the porch with Mrs. Hensley picking chickens for the Christmas dinner, had requested North to kill her another chicken, and North had gone into the back yard and shot a chicken with his revolver. When Turner, Hensley, and Sizemore entered the yard and started toward the house, North was standing near the entrance of the porch, twirling his pistol in his hand. Sizemore again intimated that he would go no further, but, upon Turner's insisting that he go in, the three men went onto the porch, Turner in front, Sizemore immediately behind him, and Hensley following. As Hensley passed North at the end of the porch, some jocular remarks were passed between them about North's pistol; Hensley offering to shoot it if North would let him have it. When the three men reached the porch, North's wife met Turner, her father, and began to tell him about the threat that Sizemore had made to her the day before, in which he had said he would kill North on sight. Turner and his daughter thereupon entered the house, and immediately thereafter Mrs. Turner, seeing Sizemore, said to him that she did not see how he could come to her house after he had mistreated her daughter; and that he was not welcome there. To this remark Sizemore replied: "I have always treated Nick Turner right, and I would not have come in here if he hadn't invited me in. I will get out, and if anybody wants anything they can get it." As Sizemore turned to leave, he passed between Hensley and the wall of the house, and immediately five shots were fired. When the smoke cleared away, North was lying dead upon the porch, and Manual Templeton was fatally wounded, dying shortly thereafter. Sizemore admits that he fired four of the shots, but claims that North fired the other shot, and fired first. One or more of the witnesses say that the reports of the shots were not the same; that the report of the first shot was the louder of the two, the subsequent reports being smaller in sound and volume.

Sizemore testified that, as he was leaving the house, North threw his pistol on him and fired, but that Sizemore knocked the pistol up with his right hand so that the shot passed above him, and, drawing his own pistol from his pocket with his left hand, he fired the four shots which resulted in the killing of North. On the day after the killing, the witness Lewis examined the wall of Turner's house and found a bullet hole in the wall that had been made by a bullet ranging from the lower end of the porch, and which had entered a poplar log in the side of the house. The bullet had passed into the room and through the upper door, and had struck the wall in the opposite corner of the room from where it entered.

Sizemore's plea was self-defense; and for a reversal he assigns two grounds: (1) That the instruction upon self-defense was erroneous; and (2) that the court erred in refusing to allow appellant to show that the pistol of Manual Templeton was not fired during the difficulty.

1. The instruction complained of reads as follows: "If you shall believe from the evidence that at the time the defendant Logan Sizemore shot at, wounded, and killed the deceased, Grant North, if you shall believe from the evidence beyond a reasonable doubt he did so do, that the defendant was in danger of death or the infliction of some great bodily harm at the hands of Grant North, and that it was necessary or believed by the defendant, in the exercise of a reasonable judgment to be necessary to so shoot at, wound, and kill the deceased North in order to avert that danger, real or apparent, then you will find the defendant not guilty upon the grounds of self-defense, or the apparent necessity therefor." The complaint is that this instruction takes from the defendant the right given him under the law to judge of and act upon the appearances as he saw them at the time of the difficulty, and leaves that defense to the judgment of the jury, who were not present, and who were not called upon to exercise their judgment under the circumstances that Sizemore was required to act.

Under the conflicting testimony as to who was the aggressor, appellant was unquestionably entitled to an instruction giving the law of self-defense; and, since the jury ought, as far as possible, to judge of the facts surrounding the homicide from the standpoint of the defendant, such an instruction should make it clear that he was justified, if the means used by him to protect himself appeared to him, at the time, to be necessary for that purpose.

The rule in Kentucky as to when a killing in self-defense is permissible is stated as follows in 1 Roberson's Crim Law & Proc. § 163: "If one without fault believes, and has reasonable grounds to believe, that another is about to take his life, or do him great bodily harm, and he has no other apparent safe means of securing himself from the impending danger, he may take the life of the other, and is excusable upon the ground of self-defense and apparent necessity, although it may turn...