Sparks v. Commonwealth

• Decision Date: 17 January 1867
• Citation: 66 Ky. 111
• Parties: Sparks v. Commonwealth.
• Court: Kentucky Court of Appeals

66 Ky. 111

Sparks v. Commonwealth.

Court of Appeals of Kentucky.

January 17, 1867

1. If a man, contrary to law and good order and public security fire off a pistol in the streets of a town, and death be thereby produced, he must answer criminally for it, whether it be malum in se or merely malum prohibitum, and especially when he knows he is violating law.

2. " If the jury find from the evidence, beyond a reasonable doubt, that, in January, 1867, in the corporate limits of the town of Owenton, in Owen county, Kentucky, the prisoner upon trial, George W. Sparks, intentionally wantonly, and carelessly fired off and discharged a loaded pistol, loaded with powder and ball or other hard substance and this within the corporate limits of said town of Owenton and upon one of the public streets of said town, such discharging of said pistol and shot killed George Wood, in so discharging his said pistol, such killing is manslaughter, and the jury should find the prisoner guilty of manslaughter, and punish him by confinement in the penitentiary for a period of not less than two nor more than ten years, and this without regard to whether the prisoner at the time he fired his pistol had or had not an intention to kill the said Wood or any other person." Held --That this instruction was properly given by the circuit court.

3. " If the jury find that the prisoner, George W. Sparks, intentionally and in a wanton and careless and reckless manner fired off and discharged his pistol on a public street and thoroughfare in the town of Owenton, in Owen county, Kentucky, and thereby shot and killed George Wood, such killing is manslaughter, and the jury should so find, and fix his punishment by confinement in the penitentiary for a period of not less than two nor more than ten years, and this without regard to whether Sparks intended to kill Wood or not." Held --That the foregoing instruction was properly given by the circuit court.

4. If, in executing an unlawful purpose, the pistol should accidentally and prematurely go off, the accused would be criminally as liable as if he had deliberately shot it. The homicide in each case would primarily result from the recklessly executing, or attempting to execute, an illegal purpose. Unlawful conduct in either case would be the primary cause of the homicide.

5. " That if they have a reasonable doubt of the truth of any fact, any series of facts, or propositions necessary and essential, in their judgment, to the conclusion of guilt, that the prisoner is entitled to the benefit of that doubt, and they must acquit him." Held --That the foregoing instruction, " independent of any mere verbal criticism, essentially refers to the jury to determine what facts are essential to the conclusion of guilt, and then to determine whether such facts be established by the evidence beyond a reasonable doubt, which, in effect, refers the whole law and facts of the case to them; " and that it was properly rejected by the circuit court.

APPEAL FROM OWEN CIRCUIT COURT.

P. U. MAJOR, For Appellant,

CITED--

Wharton's Crim. Law, 4 th ed., 447, 448, 449, 452, 387.

1 Hale, 431; East. P. C., 261.

1 Bishop's Crim. Law, secs. 414, 415, 416.

Burrill on Cir. Ev., pp. 181, 734, 735, 736, 737.

1 Duvall, 228; Smith vs. Commonwealth.

Criminal Code, secs. 236, 237.

JOHN RODMAN, Attorney General, For Appellee,

CITED--

1 Russell on Crimes, p. 637; Roscoe's Crim. Ev., 687.

2 Duvall, 164; Galliher vs. Commonwealth.

OPINION

WILLIAMS JUDGE.

Appellant, upon an indictment for the murder of Geo. Wood, was convicted of manslaughter, and sentenced to two years' service in the State penitentiary. He seeks a reversal of that judgment. It appears, that, though there had previously been hard feelings and jealousy between appellant and deceased, growing out of their rival attentions to a young lady, yet, being cousins, appellant spent a large part of the Christmas holidays with decedent at his father's, in Owenton, Owen county, and they appeared to be friendly; when, January 2d, 1867, appellant and decedent, together with some others, were walking through one of the streets of the town, decedent but a few feet behind appellant, with another person by his side, and another gentleman by the side of appellant, when the latter inquired what was the fine for shooting in town, and said " Let us have a Christmas gun." One of the gentlemen addressed remonstrated against shooting, saying " They will fine you; " but appellant reached behind as if to draw his pistol from its resting-place, threw it over his shoulder, and nearly half-facing around, the pistol was fired, and the decedent shot in the breast, the bullet ranging downwards, and of which he died in about twenty minutes.

Upon the facts substantially stated the court gave and refused instructions. Only those complained of need be alluded to.

The second and third instructions, given at the Commonwealth's instance, are as follows:

2. " If the jury find, from the evidence, beyond a reasonable doubt, that in January, 1867, in the corporate limits of the town of Owenton, in Owen county, Kentucky, the prisoner upon trial, George W. Sparks, intentionally wantonly, and carelessly fired off and discharged a loaded pistol, loaded with powder and ball or other hard...