Tolliver v. Commonwealth

• Decision Date: 18 November 1914
• Citation: 170 S.W. 515,161 Ky. 81
• Parties: TOLLIVER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

170 S.W. 515

161 Ky. 81

TOLLIVER v. COMMONWEALTH.

Court of Appeals of Kentucky.

November 18, 1914

Appeal from Circuit Court, Carter County.

C. W Tolliver was convicted of murder, and he appeals. Reversed and remanded for new trial.

D. B Caudill and W. E. Proctor, both of Morehead, H. L. Woods, of Olive Hill, G. W. E. Wolfford, of Grayson, and H. R. Dysard of Ashland, for appellant.

James Garnett, Atty. Gen., for the Commonwealth.

HOBSON C.J.

C. W. Tolliver was indicted in the Carter circuit court, charged with the murder of Lafe Fraley, and, having been tried before a jury, was found guilty, and his punishment was fixed at confinement in the penitentiary for life. The court refused a new trial, and he appeals.

The case was tried at the term at which the indictment was found. The defendant filed an affidavit for continuance. The commonwealth attorney agreeing that the affidavit might be read as the deposition of certain absent witnesses, the court overruled the motion for continuance. On the trial the defendant asked that the affidavit be taken as true, and the jury so instructed. The court refused to do this. This was error, as the trial took place at the same term at which the indictment was found. Under the statute the defendant was entitled to have a continuance, unless the facts stated were admitted as true. Jones v. Com., 154 Ky. 640, 157 S.W. 1079; Lawson v. Com., 159 Ky. 757, 169 S.W. 494; Biggs v. Com., 159 Ky. 836, 169 S.W. 525; Tyree v. Com., 160 Ky. 706, 170 S.W. 33. The defense was that the killing was done in self-defense by the defendant. If the affidavit had been admitted as true, it would in effect have been admitted that the shooting was done in self-defense, and all proof to show the contrary would have been inadmissible on behalf of the commonwealth.

The defendant had at the trial several witnesses who testified to the same facts set out in the affidavit for continuance, and it is insisted that he was not, therefore, prejudiced by not having his affidavit admitted as true; but the jury were at liberty not to believe these witnesses, and, if the affidavit had been admitted to be true, they would have been required to accept it as true.

The court gave the jury this instruction on self-defense:

"If the jury do not believe as in either instruction No. 1 or No. 2, but believe from the evidence beyond a reasonable doubt that at the time the defendant shot and killed deceased, Lafe Fraley (if he did so shoot and kill him), he, the defendant, had reasonable grounds to believe and in good faith did believe that, at the time he so shot and killed the deceased, he was then and there in danger of death or great bodily harm at the hands of the deceased, and that in the exercise of a reasonable judgment and under the circumstances there was or appeared to the defendant no other way to avert the said danger, or to him apparent danger, than to shoot and kill the deceased, they will acquit the defendant on the ground of self-defense or apparent necessity."

It will be observed that, in order to acquit the defendant under this instruction, the jury were required to believe from the evidence beyond a reasonable doubt the facts therein stated. The defendant is not required to establish his defense beyond a reasonable doubt. He admitted the killing, and his only defense was that he shot in self-defense. The instruction was therefore prejudicial to his substantial rights. Bonner v. Com., 38 S.W. 488, 18 Ky. Law Rep. 728; Adkins v. Com., 82 S.W. 242, 26 Ky. Law Rep. 496; Biggs v. Com., 159 Ky. 836, 169 S.W. 525.

The proof on the trial showed that the deceased had knocked down a man by the name of Sparks with a bottle, and while Sparks was lying on the ground, bleeding at the nose and supposed to be...