Citation Numbers: 182 Ky. 790
Judges: Clay, William
Filed Date: 1/17/1919
Status: Precedential
Modified Date: 7/24/2022
Opinion of the Court by
Affirming.
Robert Hurley was convicted of murder and given a life sentence in the penitentiary. He appeals.
Some time prior to the homicide, an execution for cost in a case in which judgment had been rendered against defendant was placed in the hands of Robert Eversole, a deputy sheriff of Laurel county. On the morning of December 29, 1916, Eversole went to the homes of Grant Johnson and W. A. Sears and deputized them to go with him to assist him in collecting the execution, or in levying the same upon the property of the defendant.
They reached the home of the defendant about nine o’clock. Upon their arrival the defendant invited them into his home, but the officer and his assistants declined to go in. Eversole then told the defendant that he had. an execution for the costs in the hog case and wanted to know what defendant was going to do about it. Defend
The greater portion of the brief of counsel for the defendant is taken up with a discussion of alleged verbal inaccuracies in those instructions dealing with the right of the deceased to summon Johnson and Sears to assist him in making the levy. While, on the whole, we conclude that these instructions were correct, we do not see how any technical error in them could have been prejudicial to the defendant, in view of the fact that the case turned on what actually took place between the defendant and Eversole at the time of the shooting. The real issue was whether the defendant wilfully and feloniously shot and killed the deceased, or the homicide was justifiable on the ground of self defense.
The instructions on this phase of the case are in the usual form and are criticised solely on the ground that the court erred in qualifying the self defense instruction by adding the following:
“Unless you shall further believe from the evidence, beyond a reasonable doubt, that the defendant first wilfully and feloniously began a difficulty with the deceased, and assaulted him with a deadly weapon with intent to kill him, when it was not necessary, and when defendant had no reasonable grounds to believe it necessary to protect himself from immediate danger of death or great bodily harm, or which reasonably appeared to him about to be inflicted upon him by said Eversole, and that the defendant thereby brought on such danger to himself, if you believe from the evidence any such danger existed, then in that event, the jury should not acquit the defendant on the grounds of self defense or apparent necessity.”
Of course, if the clause qualifying the self defense instruction had not been sustained by the evidence, it should not have been given. Barker v. Commonwealth, 159 Ky. 304, 166 S. W. 981. But if the evidence for the Commonwealth be true, the defendant first brought on the difficulty by assaulting the deceased with a deadly weapon, when he was in no real or apparent danger.
It is next insisted that the court erred in not passing the case until the return of the sheriff, W. H. Steele, who had been sent to Harlan county. It appears that the witnesses, Johnson and Sears-, testified in the circuit court that the defendant said to his father at the time of the killing, “Pap, by God, get out of the way,” Defendant’s counsel avowed that if the sheriff were present he would testify that these two witnesses stated, on the examining trial, that the defendant said to his father, “Get out of the way, Pap, get out of-the way, get out of the way.” Not only was this discrepancy in the testimony of Johnson and Sears testified to by the county judge and two deputy sheriffs, but it is apparent that the difference between the two statements is so slight as not to amount to a material contradiction. That being true, the refusal of the court to pass the case can not be regarded as prejudicial error.
Upon the whole, we find no error in the record entitling the defendant to a reversal of the judgment.
Judgment affirmed.