27 Ky.L.Rptr. 1205
Court of Appeals of Kentucky.
June 17, 1905.
ACTION: Reversed.

Appeal from Circuit Court, Knox County.
"Not to be officially reported."
Pal Carnes was convicted of manslaughter, and appeals.

The appellant and one James Gray were jointly indicted for the murder of one John Mills. Appellant was tried at the December term, 1904, of the Knox circuit court, and was convicted of voluntary manslaughter, and his punishment fixed at eight years in the penitentiary. Appellant asks a reversal for several reasons, but we do not deem it necessary to notice but two of them. One is that the court erred in limiting or qualifying the instruction on self-defense, the other is that the court erred in allowing the commonwealth attorney to ask of the accused, when on the stand as a witness, certain questions over the objections of his counsel.

To arrive at a proper understanding of the questions involved it is necessary to state in substance the facts, as they appear in the record, leading up to the moment of the killing. The homicide occurred on May 28, 1904, in the storeroom of one H. C. Mills, on Straight creek, in Knox county. A few weeks previous to that date there was an election of a Republican committeeman for that precinct, at which appellant and his codefendant and many others were present. One Hubart Mills, a relative of the deceased, and another young man engaged in a scuffle bordering on a fight, when appellant's codefendant, James Gray, attempted to separate the belligerents, when Mills turned upon him with a knife, struck at him, and knocked his hat off. Appellant and others interceded, and quelled the trouble. The deceased was not present. But it appears that erroneous reports of that difficulty reached him, which incensed him. He uttered repeated threats against the defendants, some of which were communicated to them; at least they were informed that deceased threatened their life. On the day of the killing deceased and his cousin Clark Mills, who it appears was a stranger in that vicinity, left the former's home, and went to Flat Lick, where they procured some whisky and became intoxicated. They purchased a supply of cartridges for their pistols and shotgun, and started up the creek to H. C. Mill's store. On the way they met several persons, from whom they made inquiries for the defendants, stating, in substance, that if they found them they would kill them. Arriving at the store, deceased entered it with the shotgun held in position to fire, with head erect, and appearing to be closely scanning the faces of all present in the store. The two Millses then called for and were furnished oysters, which they ate at the back end of the storeroom. Soon after this appellant and James Gray entered the store and took seats upon the counter. Deceased approached to where they were, and also took a seat on the counter between them. In some manner Mills caused a keg or something to come in contact with Gray's foot. Gray remarked that he had a corn on his foot, which gave him much pain, to which deceased made answer, "By G--, let me shoot it off." Gray replied that that would make it hurt worse. Appellant at this juncture left the storehouse through the back door, going to a well near by and procuring some water. Deceased and Clark Mills also went out, and, approaching the well, deceased, according to the statements of the defendants, said to them with an oath: "When you want to knock anybody's hat off, knock off the hat of some one who can fight and kill you." At the time of this remark he had his pistol drawn. Gray answered that he did not wish any trouble, and that he (deceased) was mistaken about his having knocked off the hat of Hubart Mills; that it was his own hat that had been knocked off; and, turning to appellant, said, "Let us get Mill's [the merchant's] razor and shave." Gray and appellant immediately returned to the store, and, after being handed the razor, deceased remarked, "Give them a forty-five and let them shave themselves with it." To this the merchant replied, "They can't shave with that," when deceased retorted, "I can shave them with my thirty-two special." Defendants, without replying repaired to the merchant's dwelling house, distant some 15 or 20 feet from the storehouse. After shaving, which occupied them some 20 or 30 minutes, they returned to the store. In the meantime the two Millses had remained in the store and it appears that deceased had informed the merchant's wife of what he had said to defendants at the well, in substance what they stated occurred. The merchant's wife, anticipating trouble, requested a person about ready to leave the store to induce the deceased to leave with him, which he declined to do, giving as a reason that he had not finished trading. He had bought several articles when the defendants returned to the store. Appellant began to make his purchases, taking a seat on the counter situated on the right of the door entering from the front, while Gray was seated on the opposite side. Clark Mills appears to have been standing near the front door and between the counters, with the shotgun which some of the witnesses state he held in shooting position, while others testified that he held it with the muzzle pointed downward. At this moment deceased received a sack from the merchant, and with it started toward the front door, but stopped at Gray, slapped him on the thigh, and remarked: "By G--, when you slap a person's hat off, slap one who can fight," and immediately turned his left side to appellant, looking him squarely in the face, and, according to appellant's witnesses, undertook with his right hand to draw his pistol from a holster. At that moment appellant fired the fatal shot. The proof shows that instantly after appellant fired and shot John Mills, Clark Mills fired at appellant with his shotgun, without effect. Then Clark Mills turned his gun upon James Gray, but at the first effort the gun missed fire and snapped. Appellant and Gray both then opened fire upon Clark Mills, who, however, during the firing, succeeded in discharging a shot at Gray, which also went wild. John Mills, after receiving the wound, started toward the front door, where he fell, just outside the storeroom. When his body was turned over, he having fallen on his face, a "32 special" was found in a holster, with most of the handle exposed. It appears also from the evidence that just at the time John Mills slapped Gray as related the merchant's wife approached him, and said, "John, brother, do not raise anything here." He did not appear to notice her. At this moment she also noticed appellant get upon the counter, drawing his pistol. She immediately stepped toward appellant and asked him not to shoot, but he fired with the result stated. There is some conflict in the evidence as to whether deceased attempted to draw his pistol when he was shot. The evidence also shows that deceased bore the reputation of being a dangerous, violent man, while appellant was shown to be a quiet, peaceable citizen. The commonwealth made no attempt to contradict this testimony, but sought to weaken or destroy its force by impeaching or attempting to impeach the character of most of the witnesses who testified upon that point. The commonwealth introduced no evidence tending to prove that appellant ever at any time threatened deceased, or used an unkind word to or concerning him. The only effort he ever made to harm deceased, it appears, was when he fired the fatal shot.

Upon these facts the court gave the usual and proper instructions on murder, voluntary manslaughter, and self-defense, and defense of another, save that he added the following to the self-defense instruction: "Unless you shall further believe from the evidence beyond a reasonable doubt that the defendant, Pal Carnes, first willfully and feloniously assaulted the deceased, John Mills, with a deadly weapon, a pistol, and in so doing thereby made the harm or danger, if any there was towards him or his codefendant, James Gray, necessary or excusable on the part of the said John Mills, and those acting with him, if any; in which event you cannot excuse the defendant upon the ground of self- defense or apparent necessity." We are of the opinion that this limitation was prejudicial to the substantial rights of appellant. As the evidence conduced to show that appellant fired first, the jury probably understood that the court meant by this instruction that, if the accused filed first, it was the assaulting referred to by the court in the instruction quoted, and that therefore accused was deprived of the right of self-defense; in other words, as the accused fired first, he could not be excused on the ground of self-defense. In the case of Commonwealth v. Hoskins, 35 S. W. 285, 18 Ky. Law Rep. 60, the court said: "The accused ought not to be deprived of the benefit of his plea unless the evidence established beyond reasonable doubt that he sought and provoked the difficulty with the accused in which the killing occurred, and was throughout the aggressor therein, with the felonious intention and purpose to make the difficulty an occasion of taking the life or of seriously injuring the deceased." There was no evidence that the accused sought or provoked the difficulty, unless their going to the store armed with pistols was evidence of that fact. They had worked at a sawmill that day until 3 o'clock p. m., at which time they went to their homes for a change of clothing, afterward going to the store named above to purchase supplies for their families. They both stated that they carried their pistols to protect themselves from the deceased and the father of Hubart Mills, who had also threatened to kill them; that they did not know that they, or either of them, would be at the store, but thought it probable they would be. It might be best for peace and the good of society for a person whose life had been threatened to remain at home and abstain from transacting business, and give the dangerous, lawless element possession of the highways and places of business. The law does not require this, but gives equal rights to all at such places. We are of opinion that the court should have omitted the above-quoted qualification in the instruction alluded to, and should do so on another trial, if the evidence is substantially the same.

The court permitted the attorney for the commonwealth, over the objections of appellant's counsel, to ask appellant several times why he did not leave the store and go home when he found the deceased there, and asked him why he did not remain in the dwelling house, and why he did not go home from there instead of going back to the storehouse. Appellant's answer to each of these questions was, in substance, that they had come there to purchase supplies, and desired to do so before leaving. While these questions and answers possibly did not materially prejudice the substantial rights of the appellant, yet the jury may have believed, as the court overruled the objections to these questions, that the court was of the opinion that appellant, by going home, could have avoided the difficulty, and the jury may have been impressed with the idea that it was the legal duty of appellant to have done so. While we would not reverse on that ground alone, yet on another trial of the case the court should not permit such a course of examination.

Wherefore the judgment is reversed, and cause remanded for proceedings not inconsistent herewith.

Ky.App. 1905.
87 S.W. 1123, 27 Ky.L.Rptr. 1205

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