15 Ky.L.Rptr. 215
Court of Appeals of Kentucky.
June 1, 1893.
ACTION: Affirmed.

Appeal from circuit court, Clay county.
James Murphy was convicted of manslaughter, and appeals.

The only ground suggested by counsel for reversal of judgment in this case is the third instruction, as follows: "Even if the jury believe from the evidence that the shooting and killing of William Gray was accidental, yet, if they believe that said accidental shooting and killing was the result, alone, of the recklessly careless use of a loaded pistol in the hands of the defendant, they should find the defendant guilty of voluntary manslaughter, and fix his punishment at confinement in the penitentiary of the state for a period of not less than two, nor more than twenty-one, years, in their discretion." We do not see any error in that instruction, for an offense which may be either murder or manslaughter, according to attending circumstances, is correctly described in that instruction. The only reason that could exist for condemning the instruction is lack of evidence authorizing the court to give it, and even in view of the evidence in the case it was proper for the court to give it. The deceased was a boy 11 years of age, accused being 15 or 16 year old. The deceased, accompanied by a woman, went to a place in the woods for the purpose of carrying dinner to two men who, with the accused, were engaged in getting sawlogs. The deceased was asked by one of the men to preach, but, upon his refusal, accused drew a loaded pistol, and, pointing it at his toes, told him he would shoot him if he (deceased) did not preach, and continued pointing it at him until deceased ran under a log for protection, in the mean time crying from fright. Afterwards accused started away from the place, and, by persuasion, deceased was induced to accompany him. When they had gotten away about 150 yards, and out of sight, a pistol shot was heard by the others, who, when reaching the place, found the little boy with a wound in the breast, and dead. Accused stated that the shot was purely accidental, and resulted from his falling, and striking the pistol that was in the scabbard against a rock, and that he did not at the time have the pistol pointed at deceased, or even drawn; but to another person he admitted, on the day after the killing, that he had the pistol pointed at deceased, and the shot was caused by his finger accidentally slipping upon the trigger. There was evidence sufficient to authorize the jury to believe and find death occurred under circumstances of such reckless and gross carelessness as to make the homicide manslaughter, of which accused was found guilty. Judgment affirmed.

Ky.App. 1893.
22 S.W. 649, 15 Ky.L.Rptr. 215


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