14 Ky.L.Rptr. 592
Court of Appeals of Kentucky.
Nantz v. Commonwealth.
Jan. 12, 1893.
ACTION: Reversed.


Appeal from circuit court, Clay county.
"Not to be officially reported."
Joseph Nantz, having been convicted of manslaughter, appeals.

The killing of one who, voluntarily, and without apparent excuse, leaves a place of safety, and with drawn pistol goes to where certain persons--several on each side--are fighting, and taking the side of one, commences firing indiscriminately, is justified, though all the parties originally engaged were in the wrong, if such killing was necessary, or seemed to be necessary, to ward off danger threatened either by deceased or those with whom he was associated.
James Eversole, for appellant.
W. J. Hendrick, for the Commonwealth.

Lewis, J.
Under a joint indictment against him and J. H. Bowling for manslaughter, appellant, being tried separately, was convicted. The person killed was Jack Downey, and it occurred under these circumstances: There were assembled several persons in a liquor saloon belonging to Bowling, when a dispute arose between him and one Sebert, who was drunk, about the number of drinks called for by, and furnished to, the latter, which resulted in both drawing their pistols, though the evidence shows the language used by Sebert only was insulting and offensive. But two of his friends interposed before any violence was done, and induced Sebert to leave the saloon, and he started with them along the public road away from the place. Bowling then caused all persons to go out of the saloon, the door of which he closed for the purpose, as stated by him, of stopping the difficulty. One Chadwell, a friend of Sebert, did not, however, accompany the others. Instead, he remained in front of Bowling's dwelling house, that was near the saloon, using violent language, and brandishing his pistol, at the same time stating, in reply to a rather vigorous request of Bowling's wife to go away, that he would not do so until he got ready; and thereupon, without any apparent excuse or provocation, he presented his pistol at one Stewart, a friend of Bowling, demanding delivery of his gun. But another person interfered, and induced him to go away, upon assurance that Stewart would not use his gun against him if let alone. About that time one Brown endeavored to take from appellant his pistol, which it appears he had drawn while in the saloon, and then had in his hand, though not attempting or threatening to use it, and in the struggle between them the pistol was accidentally discharged; the ball, however, not going toward Sebert and his party. Thereupon firing commenced by both parties, though the evidence satisfactorily shows the first shot was fired by Chadwell, who had gotten a short distance away; not having overtaken Sebert and his other two friends, who were 30 yards or more distant from the saloon. The evidence shows that only Bowling, Stewart, and appellant did any shooting on one side, while there were five of the Sebert party, subsequently reinforced by the deceased, Downey. A great many shots were fired, many of them going into Bowling's dwelling house; compelling his wife, who narrowly escaped being wounded, and her children, to leave it. It appears that Downey was not at the saloon when the difficulty commenced, being off in the woods, playing cards, but, immediately after being informed of it, he drew his pistol, and started to join Sebert's party, stating he would go to Sebert or to hell, and when he got there commenced shooting at Bowling, Stewart, and appellant, and while so engaged was fatally wounded.

It is to us clear, from the evidence, that the Sebert party were the aggressors; for not only did Sebert himself, without excuse, use insulting and offensive language to Bowling, and also draw his pistol, while in the saloon, but there is evidence tending to show that he premeditated and intended to bring on a difficulty. On the other side, neither Bowling nor his friends made a hostile demonstration after Sebert left the saloon until first fired on, although the conduct of Chadwell was not only insulting and menacing, but amounted to an assault upon Stewart. The place where Downey was killed, and about where the Sebert party had at that time taken position, was considerably further from the saloon than where they were when the firing commenced, and the other party had likewise shifted their position, because, as there is some reason to believe, they were not safe in or about Bowling's dwelling house, for there Stewart was shot and killed. But the evidence does not show that the Sebert party had retreated, or that the other party had followed or pursued them, up to the time Downey was killed. The evidence is not satisfactory who fired the particular shot that caused the death of Downey, nor does it appear that appellant or Bowling knew at the time he had joined the Sebert party. On the contrary, appellant testified he did not know Downey was there at all, which is quite probable, as it clearly appears he was off in the woods when the difficulty commenced. He further testified, without contradiction, that he and Downey had never had a previous difficulty, and were entirely friendly.

There is not the slightest reason for belief that Downey joined the Sebert party with the purpose of preventing commission of a felony. But the evidence places it beyond question that he left the place he was at, and joined that party, with the purpose of rendering them all the aid in his power, even to the extent of killing or wounding, indiscriminately, the other party, without any previous inquiry, or apparent care, which of the two parties were in the right. We thus have the case, not of an innocent bystander killed, nor of a person losing his life in an effort to prevent commission of a felony, but of one who voluntarily, and without apparent provocation or excuse, leaves a place of safety, and, with pistol drawn, goes where two parties are fighting, takes the side of one of them, and commences to shoot at the other, without regard to which of them he might kill or wound. It is therefore clear, as the record stands, that if the deceased had killed either Bowling, Stewart, or appellant, instead of being himself killed, he would have been guilty, not merely of the crime of manslaughter, for which appellant was indicted, but of murder. And even if it be conceded that all those of each party originally engaged in the combat were in the wrong, because they mutually and willingly engaged in it, and that consequently the plea of self-defense would not have availed any one of them for killing another, certainly appellant was not in the wrong as to the deceased Downey, who, without legal excuse or provocation, commenced firing at the party to which he belonged. Therefore, though appellant did in fact fire the fatal shot, if he at the time believed, or had reasonable grounds to believe, himself in danger of losing his life or suffering great bodily harm at the hands of either the deceased or any other person with whom he was then acting in concert, he was excusable on the ground of self-defense and apparent necessity. The lower court, in the first instruction, told the jury, in general terms, to find appellant guilty if he killed deceased at a time when it was not necessary, nor reasonably apparent to him to be necessary, to protect himself from death or bodily harm at the hands of deceased or some other person. But the jury was not distinctly enough instructed that appellant was excusable on the ground of self-defense, if he believed, or had reasonable grounds to believe, he was in danger of losing his life or suffering bodily harm at the hands of either deceased or any one else belonging to the Sebert party, with whom deceased was acting in concert. If such instruction had been plainly given, we do not see how the jury could have convicted appellant; for not only was deceased, but five others were, at the time firing at him and his two companions, Bowling and Stewart. On the contrary, by the third instruction, his acquittal, though Bowling may have committed the homicide, was, in terms, made to depend upon his reasonable belief that the deceased alone was then about to kill him or Bowling, and that the shot which caused the death was fired to protect appellant or Bowling from such impending danger of death or great bodily harm. It does not appear who fired the shot that killed the deceased, nor at which one of the three persons he had been or was then firing, but, by voluntarily and unlawfully joining the Sebert party, he gave them aid and comfort; and, if his death resulted from a shot fired by either Bowling or appellant, the act was excusable, if they were at the time in real or apparent danger from him, or any one or all the Sebert party.

Wherefore, the judgment is reversed for a new trial consistent with this opinion.

Ky.App. 1893.
Nantz v. Commonwealth.
20 S.W. 1096, 14 Ky.L.Rptr. 592


     

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