Fields v. Commonwealth , 5 Ky. L. Rptr. 861 ( 1884 )

Opinion by

Judge Hines :

This is an appeal from a life sentence to the penitentiary on a charge of murder. The evidence tends to show threats and an assault by the deceased and such circumstances surrounding the killing as might have authorized the jury to find the defendant guilty of manslaughter only.

In view of these facts it is insisted that the court below erred in neglecting to instruct the jury, as we have held it should do, under Crim. Code 1876, § 239. That section says: “If there be a reasonable doubt of the degree of the offense which the defendant has committed, he shall only be convicted of the lower degree.” The necessity of giving such an instruction under circumstances such as developed here was determined by this court in the case of Williams v. Commonwealth, 80 Ky. 313, 4 Ky. L. 3.

For the error indicated the judgment is reversed and cause remanded with directions to grant appellant a new trial.