Court of Appeals of Kentucky.|
June 18, 1892.
Appeal from circuit court, Knox County.|
"To be officially reported."
J. M. E. Baker was convicted of murder, and appeals. Reversed.
On a trial for murder, where it appeared that the homicide occurred on defendant's premises, of which deceased and others were unlawfully seeking to dispossess him, failing to instruct on the question of self-defense, in effect that defendant, being on his own premises, was not bound to retreat but had the right to use such force as was reasonable and necessary to repel a forcible entry thereon, was error.
The appellant and his father had had a lawsuit with David C. Baker, involving the right to some real estate. The circuit court held that David C. Baker was entitled to said land. This court reversed that decision, holding that the appellant and his father were entitled to the land. Thereupon, upon the return of the cause to the circuit court, that court caused the appellant by proper writ to be put into the possession of said land, except the house and about two acres and a half of land, which the appellant and David C. Baker agreed that the latter might hold until the end of that year as tenant. The evidence tends to show that, after the year had expired, David C. Baker concluded to regain and hold by force the land that the appellant had been put into the possession of. David C. Baker's brother, William Baker, knowing that said land had been restored to the possession of the appellant by order of court, joined with him to enter upon said land and take forcible possession of it, and fence it up. They induced others to join them in the enterprise, and they did pursuant to said purpose enter upon said land and commenced fencing it up. The crowd thus engaged, or the most of them, went upon said land armed with pistols, guns, and rifles. The evidence tends to show that they proposed to take forcible possession of the appellant's land, and to kill the appellant or certain others that attempted to stop them. This condition, as appears from the record, caused the appellant and his tenant to arm themselves to protect themselves against what appeared to them (and we think with reason) to be a trespass upon the appellant's property, with the felonious intent of killing them if they attempted to resist the entry. On the morning of the killing, the deceased, William Baker, and others went upon said land, the most of them being armed with pistols, shotguns, and rifle guns. The evidence tends to show that the appellant and Furguson saw them coming, as they approached within a hundred yards of appellant's stable, to which they were apparently coming. The appellant and Furguson then took shelter in the stable, armed with guns. When the trespassers, William Baker being in the lead, had approached to within 40 yards of the stable, the appellant, as the evidence tends to show, ordered them to stop, and William Baker refused, and started forward towards the stable, and, as he did so, reached for the gun that Patterson was carrying, Patterson being close by. Just then the appellant shot William Baker from the stable, and then a general firing from both sides commenced. The lower court's instructions to the jury upon the subject of self-defense fails to tell the jury that appellant, being on his own premises, was not bound to retreat, but had the right to stand his ground, and use such force as was reasonable and necessary to repel a forcible entry upon his premises. The rule upon that subject, as applicable to this case, is that a person is not bound to retreat when upon his own premises, but may stand his ground, and defend his person or property, but he is not justified to take the life of a mere trespasser, or do him bodily harm to prevent the mere trespass. But if the trespass is committed with the intention of killing or doing the owner of the property great bodily harm if he resists the trespasser, in such case the trespass is committed with felonious intention against the owner, and he has the right to kill the felonious trespasser if he has reasonable grounds to believe it necessary to protect his life, or to prevent great bodily harm at the hands of the trespasser. According to the facts appearing in this record, the instructions upon the subject of conspiracy should not have been given. The judgment is reversed, and the case remanded, with directions to grant a new trial, and for further proceedings consistent with this opinion.
Transcribers notes: It is not known the outcome of the new trial. Anyone with known information on this trial I would love to post the update.
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