Trimble v. The Commonwealth

• Decision Date: 15 November 1879
• Citation: 78 Ky. 176
• Parties: Trimble v. The Commonwealth.
• Court: Kentucky Court of Appeals

Page 176

78 Ky. 176

Trimble v. The Commonwealth.

Court of Appeals of Kentucky.

November 15, 1879.

APPEAL FROM FAYETTE CIRCUIT COURT.

Z. F. SMITH, JR., FOR APPELLANT.

P. W. HARDIN, ATTORNEY GENERAL, FOR APPELLEE.

JUDGE HINES DELIVERED THE OPINION OF THE COURT.

Appellant was indicted for the murder of his brother, and sentenced to the penitentiary for life. From the evidence the jury were authorized to find, and we must assume it to be true, that the deceased, being of a quarrelsome and aggressive disposition, without provocation, assaulted and beat his little brother and sister, assaulted his father, who interposed to protect them; and while the deceased was engaged in the assault upon his sister, appellant approached with an axe, and on the deceased, with a grape-shot in his hand, turning upon appellant in a threatening manner, appellant struck and killed him.

It is insisted for appellant, first, that the court erred in failing to instruct the jury in reference to the law of involuntary manslaughter; and second, in saying to the jury that the law implied malice from the existence of certain facts.

It is the duty of the court to instruct the jury in regard to the whole law of the case, and when it is manifest that the failure of the court below to so instruct might have been detrimental to the substantial rights of the accused, this court, on the appeal of the accused, will reverse. In the case under consideration the record does not develop such a state of facts as would authorize a reversal upon the sole ground that the court neglected to give the jury the law of involuntary manslaughter. There are no facts in this case from which the jury would have been justified in finding that the killing was unintentional, yet, for the purpose of making the rulings of the lower courts homogeneous, it may not be inappropriate to state the law upon that question as it is understood by this court.

In Conner v. Commonwealth, 13 Bush, 718, we have said: "Involuntary manslaughter is the killing of another in doing some unlawful act, but without an intention to kill, and this may be either when the act is directed against the person killed, or when it is directed against another person or thing and kills one not intended to be hurt."

Wharton on Homicide, page 35, says it is "involuntary manslaughter, when a man doing an unlawful act, not amounting to felony, by accident kills another. It differs from homicide excusable by misadventure in this: that misadventure always happens in the prosecution of a lawful act, but this species of manslaughter in the prosecution of an unlawful one. When a person does an act lawful in itself, but in an unlawful manner, this excepts the killing from homicide excusable per infortuniam, and makes it involuntary manslaughter," which is...