Court of Appeals of Kentucky.
June 7, 1894.
ACTION: Reversed.

Appeal from circuit court, Clay county.
"Not to be officially reported."
George Thompson was convicted of murder, and appeals.

The appellant, in connection with Jackson Asher and David Turner, is charged in the indictment with the murder of Granville Fisher, and upon his separate trial, in the Clay circuit court, in March last, was convicted, and sentenced to the penitentiary for life.

His counsel contend that by the instructions the jury were not required to believe beyond a reasonable doubt that the accused shot and killed the deceased, but were so required to believe only as to the existence of the conspiracy between the defendants. We think, however, that the clause "beyond a reasonable doubt" modifies, not only the verb "conspired," but also the succeeding words, "shot and wounded." But, even if there is ambiguity in the particular instruction complained of, it is evident from other instructions that the belief of the jury on the question indicated was required to be beyond a reasonable doubt. Besides, a separate instruction required the jury to acquit if, upon the whole case, they entertained a reasonable doubt of the accused having been proven guilty.

Objection is also urged to the instruction authorizing the jury to acquit on the ground of self-defense and apparent necessity, "unless the jury further believe from the evidence, beyond a reasonable doubt, that the defendant, Thompson, by his own wrongful act, made the harm or danger to him necessary or excusable on the part of the deceased." It may be that such a modification of the law of self-defense would be misleading and prejudicial in some cases, but we do not see any objection to it here. The movement of the appellant, with Asher, towards the Frazier house, was either for the purpose of attacking the deceased and his friend, in which case the act was wrongful, and deprived him of the right to then defend himself, or it was for the purpose of going home, and avoiding further difficulty, in which case the act was not wrongful. The issue was thus clearly submitted to the jury.

It seems to us, however, that the court erred in refusing to allow David Turner to testify in behalf of the appellant. It is true that the witness was jointly indicted with the appellant, and, with him, charged with a conspiracy to commit this crime, but we think the evidence of such conspiracy is far from being satisfactory. The parties, theretofore friendly, had met at Harman's, where the deceased appears to have been drinking and quarrelsome. He drew his pistol on the appellant, and fired it into the ground. Asher, Turner, and the appellant left, and the negro man, McCall, testifies that Turner said, "Let's go and get a gun, and kill them." The proof shows, however, that Turner got no gun, was too far from the fight to have engaged in it, and was in fact unarmed, and took no part in the trouble. Whatever Turner may have said, he is not shown to have done anything, and whether he said anything is rendered doubtful by reason of proof strongly discrediting the testimony of the witness McCall. The conspiracy must be shown "to the satisfaction of the court" before the witness is disqualified. Inasmuch as the accused is not now precluded from testifying for himself, there would seem to be no good reason for rejecting the testimony of an alleged confederate. The law does not seek to suppress the truth; hence, the accused may testify in his own behalf. And so, now, may an alleged accomplice or co-conspirator testify for his codefendant, as the lawmakers have repealed the sections of the Code heretofore precluding such testimony, though the repealing act was not in force at the time of the trial of this case. We do not think that a conspiracy has been satisfactorily established, and especially are we indisposed to apply rigidly the provisions of these repealed sections of the Code, in view of the policy of the law to thus extend, rather than contract, the scope of admissible testimony. For this error alone the judgment is reversed, with directions to award the appellant a new trial.

Ky.App. 1894.


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