Appeal from Circuit Court, Clay County
Eversole Vs. Commonwealth
ACTION: Affirmed
Court of Appeals of Kentucky
Feb. 18, 1896

This is a second appeal from judgment on conviction of accused of manslaughter, the punishment inflicted at the last trial being confinement in the penitentiary 4 years, instead of 21, the period fixed at the first trial. As the testimony appears to be not materially different from what it was on first trial, we need only refer to the former opinion, delivered May 31, 1894, where the circumstances under which the homicide occurred were stated in detail. We perceive no objection to any instruction given to the jury on the last trial, nor does appellant contend any of them are improper except No. 4, as follows: "If the jury believe from the evidence that at the time defendant (Joseph Eversole) shot with a pistol, and killed John Hord, if they believe from the evidence beyond a reasonable doubt he did do so, he believed, and had reasonable grounds to believe, that he was then and there in immediate danger of death or infliction of great bodily harm at hands of said Hord, and that to shoot and kill him was necessary, or seemed to the defendant, in the exercise of a reasonable judgment, to be necessary, in order to avert said danger, real or to the defendant apparent, then the jury will acquit the defendant upon the grounds of self-defense and apparent necessity." On the former trial an instruction was given substantially like the foregoing, except that immediately following the word "avert" were the words "or escape," which we held, in the former opinion, were improper and prejudicial, because implying duty of accused to retreat or flee when he was on the porch of his own house. But, as those words are omitted from the present instruction, we see no objection to it. There was, however, asked, for accused, an instruction to the effect "that defendant was not required to escape or retreat, but had a right to stand his ground, and use such force as was necessary to free himself from such danger, and use such force as was necessary to eject the deceased from his premises, even to taking his life." That instruction should not have been given, because it implied right of accused to use necessary force, even to taking life, in order to eject deceased from his premises, who had been invited there, and was then his guest. But it was not in any aspect of the case required, because the simple question whether to shoot and kill Hord was necessary in order to avert the danger had been fully and fairly submitted to the jury in a previous instruction; and, as there was evidence on that subject authorizing the jury to find as they did, we are not inclined to again disturb the verdict.

The reference on cross-examination of appellant to indictments that had in other cases been found against him could not have prejudiced him, because the court finally excluded all evidence on that subject from consideration of the jury.

No error of law having occurred in the trial prejudicial to substantial rights of appellant, the judgment is affirmed.


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