Appeal from Circuit Court, Knox County
Messer Vs. Commonwealth
ACTION: Reversed
Court of Appeals of Kentucky
Nov. 22, 1892

Steve Messer, having been convicted of manslaughter, appeals. Reversed.

Pryor, J.
The appellant was indicted for the murder of one Rufus Cook, and convicted of manslaughter. The killing took place at the house of one Henry Ramsey, the parties all living in the same neighborhood, but neither of them living with Ramsey. The house of Ramsey has two rooms, the one directly back of the other. Cook, the deceased, with a Winchester rifle, was in the back room near a window with his gun. It was about an hour after dark when the trouble originated, and why the deceased was seated on a box near the window with a gun by his side is unexplained, except on the theory that he was anticipating the arrival of the accused. The latter had been rabbit hunting on that evening, and, from the uncontradicted testimony, stopped in at Ramsey's on his way home for the purpose of getting the latter to sharpen his saw the next day. When the defendant entered the house, from the testimony of an eyewitness, he said to the deceased he wanted to see him, and with this utterance raised his gun and shot the deceased without any warning whatever. The defense shows that as soon as the deceased saw the accused he raised his gun, and the accused exclaimed, "Don't do that," when a gun fired and the deceased fell. From the testimony on both sides it was simply a question as to which one of the parties to the shooting acted in self-defense. If the testimony of the accused is to be believed, it was excusable homicide, and the complaint here made is that the verdict of guilty was returned into court by reason of an erroneous instruction, based on incompetent testimony. The state was permitted to prove that after the killing the accused and the wife of the deceased were on friendly terms, and that she had gone to live on defendant's premises. There had been no evidence introduced that prior to the killing the defendant and the wife of the deceased had been too fond of each other, or that the defendant, by any conduct of his, had caused the deceased to be jealous of him, but, on the contrary, it is shown that the appellant had no idea of any hostile feeling on the part of the deceased towards him until the day the shooting took place, and an entire failure of proof to show that the accused knew that the deceased was at Ramsey's when he entered the house. The court, in instructing the jury, qualified the instruction as to self-defense by saying in substance that if the defendant, by his own wrongful acts, made the harm or danger to himself necessary or excusable on the part of the deceased, then such a defense would not protect him; but whether such facts existed was for the jury to determine. This qualification would be sustained if any facts existed upon which to base it, but it seems to us there is no testimony authorizing it; but its effect was to leave the jury to speculate upon the real or imaginary wrongs done the deceased by the accused that led or might have led to the meeting at Ramsey's, resulting in the death of the deceased. Intimate relations between the wife of the deceased and the accused prior to the killing, if any existed, might have gone to the jury to show the motive on the part of the accused for taking the life of the deceased; but none was shown. And the testimony of what took place after that time between the wife of the deceased and the accused was clearly incompetent, and particularly with a qualification to the instruction as to self-defense that if the accused, by his own wrongful acts, brought about the necessity for his taking the life of the deceased, the law of self-defense will not avail him. The only issue, it seems to us, from the testimony, is, did the accused act in self-defense when he shot the deceased? The instruction on that subject is entirely correct, except the qualification annexed. This should have been omitted.

The judgment of conviction is reversed, and the cause remanded, with directions to award a new trial, and for proceedings consistent with this opinion.

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