12 Ky.L.Rptr. 525, 90 Ky. 596
Court of Appeals of Kentucky.
October 28, 1890.
ACTION: Reversed

Appeal from circuit court, Bell county.
"To be officially reported."

The homicide in this case occurred under the following circumstances: William Dickerson, deceased, was in some way connected with a butcher-shop belonging to his brother, and came back to the shop drunk from a trip made to purchase cattle, and, with a pistol in his hand, drove another employe away. An agent of the shop-owner, who was absent, upon being informed of his conduct, went to the place, and he was also compelled to leave. Thereupon the accused, Roger Williams, a deputy-sheriff, was sought and applied to by the agent to go and arrest him. A man named Hall, who, it seems, had some influence with the deceased, went into the shop, leaving the accused at the door, and tried to persuade deceased to give up his pistol; but, instead of doing so, the pistol, according to the testimony of Hall, was presented towards him, and threatening or defiant language used by the deceased. The accused then told the deceased to consider himself under arrest, and to throw up his hands, and very soon fired his pistol with fatal result. And the material and decisive question of fact in the case is what position the deceased had his pistol in, and what he said and did, just before he was shot. A witness named Brooks, who had been off on the trip with deceased, and drank liquor with him, testified he was in the shop at the time of the killing, and that the deceased, when told by accused he was his prisoner, and directed to throw up his hands, arose and stood in a stooping position, his head hanging down, and pistol in his hand hanging down in front of him, and was in that position when the accused from his position at the door shot him. Another witness testified he was passing by the door, and saw deceased, when told by accused to do so, throw up his hands, but the pistol he had was pointed considerably above accused when he fired. On the contrary, the accused testified that, when he went to the shop-door, he spoke to deceased, and after being recognized told him he was his prisoner, and to throw up his hands, whereupon the deceased used the words, "No you don't," and turned his pistol, and pointed it at the accused, and he then drew his own pistol from his pocket, and fired; and his statement is corroborated by that of Hall. During the examination of the accused as a witness, he was asked whether, at the time he shot, he believed he was in danger at the hands of the deceased; but objection to the question was made by attorney for the commonwealth, and was sustained by the court, although it was avowed in writing the answer would be in the affirmative. We think the court erred in refusing to permit answer to that question; for, while mere belief on part of accused that he is in danger does not avail unless he has reasonable grounds for the belief, still an inference unfavorable to the defense may well be drawn by the jury from the failure of the accused, having chance to do so, to swear he did believe he was in danger when he fired upon the deceased.

After close of testimony in chief for the commonwealth, and several witnesses for defense had been examined, the attorney for the commonwealth stated to the court that Gaither, a witness on the indictment for the commonwealth, had answered, and was in the court-house, and asked that he be sworn and put under the rule, and allowed, as an eye witness, to testify in chief, as the defendant's testimony had not closed; but objection then made to the motion was sustained. However, at conclusion of the defendant's evidence, Gaither was introduced as a witness by the commonwealth, and testified he was present when the killing occurred, and that Brooks, the witness, was at the time in the meat-shop. That statement was perhaps competent in rebuttal of previous testimony for the defense that Brooks was not there; for, if he was not present, of course his version of the manner in which the killing took place was unworthy of belief. But the further question was asked the witness how the deceased, Dickerson, had his hands when shot; and over objection of the defendant, the witness was permitted to then testify that "Dickerson had his hands up when shot." That statement cannot be regarded as in any sense rebutting testimony, but was in chief and related to the main issues of fact about which witnesses for the commonwealth and for the defense had already testified, and in regard to which the evidence on both sides had, according to the rule of proceeding laid down in the Criminal Code, been closed. It is well settled that the trial judge has a reasonable discretion in such case, but there should always be good cause for introduction of testimony out of the regular order, especially where injustice may likely result therefrom. Here the court had already decided for reasons, we must presume, deemed sufficient, against the motion of the attorney for the commonwealth, to put the witness Gaither under rules, and permit him to testify in chief; yet, after the defendant's testimony was closed, that witness was permitted to be the first time sworn, and to testify on the main issue of fact, after being present and hearing all the previous testimony on that issue. We think, in view of the time and manner in which that witness was permitted to testify, an undue advantage was given the commonwealth, and the substantial rights of the accused were thereby prejudiced.

Wherefore, for the errors mentioned, the judgment is reversed, and case remanded for a new trial.

Ky.App. 1890.


14 S.W. 595, 12 Ky.L.Rptr. 525, 90 Ky. 596

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