Messer v. Commonwealth
76 S.W. 331
Oct. 16, 1903.
25 Ky.L.Rptr. 700
ACTION: Reversed

This is a remarkable case in some of its aspects. Mrs. Elizabeth Carnes was a divorced woman, living with her children in Knox county, Ky. The defendant sustained unlawful relations with her, and was a frequent visitor at her house. A neighbor living near her heard some screaming at an early hour in the morning, and when he arrived at the house found her lying speechless on the porch floor. The accused was indicted, charged with the offense of having murdered her. The commonwealth introduced testimony to establish his guilt, which was to the effect that about two weeks before her death she and the defendant had some trouble at her house, when she ordered him away. One witness testified that afterwards he had a conversation with the defendant, in which he said "he was going back to have it over again." Another witness testified that the deceased was drinking at the time of the difficulty with the defendant, and had a Colts revolver. Another witness testified that some days before she was killed the defendant spoke of the fact that she had not treated him right, and said that "it is not all over with yet." The same witness testified that on the night of the day on which she ordered him away defendant stayed with her. Mr. Hopper, a merchant, testified that the defendant bought some cartridges from him the evening before the killing took place; that the next morning the defendant told him that the pistol went off accidentally and killed Mrs. Carnes. John Dozier testified that he sold him a Smith & Weston revolver some days before the killing took place. This is substantially the testimony offered by the commonwealth. No testimony was offered to show that defendant was even at the house of the deceased at the time she was killed, or that he fired the shot, except his admission that he had shot her accidentally. The case of the commonwealth was the very weakest kind of a one to be permitted to go to the jury at all.

The defendant was introduced as a witness in his own behalf, and testified to a state of facts which, if true, show that he killed the deceased accidentally and unintentionally. He testified that they were perfectly friendly; that he stayed with her the night preceding her death; that they took their breakfast together while she was sitting on his lap; that after breakfast they went out on the porch; that she asked him to unload her revolver, which he did; that she unloaded his pistol, and handed him what he supposed to be all the cartridges which it contained; and that he supposed the pistol was empty, and in handling it if was discharged, inflicting the fatal injury; that after it was inflicted he went for a doctor, and then went to the county seat and surrendered himself to the officers of the law, and told them that he had accidentally killed her. A witness, who was a merchant, testified that the evening before the homicide the deceased and the defendant were in his store, and that the defendant was buying such things as she seemed to want, and kindly asked her if there was anything else she wanted. He admitted in his testimony that he married the stepdaughter of the deceased to keep her from being a witness against him. Either of two motives might be ascribed for this act--one that she knew and would testify to incriminating facts; and the other that she did not know such facts, but might be induced to testify thereto. If his statements be true, the pistol was not carelessly and recklessly handled, etc. The jury found the defendant guilty of manslaughter under the instruction submitting the question as to whether Mrs. Carnes was killed by the careless and reckless, etc., use of the pistol. The court did not, as it should have done, give an instruction on the subject of involuntary manslaughter.

The judgment is reversed for proceedings consistent with this opinion.

Ky.App. 1903.


76 S.W. 331, 25 Ky.L.Rptr. 700

Appeal from Circuit Court, Knox County.
85 S. W. 722, 27 Ky. Law Rep. 527.
Messer v. Commonwealth
Court of Appeals of Kentucky.
March 15, 1905.
ACTION: Reversed and Remanded

Where the defense in a homicide case is that the pistol was discharged accidentally, without defendant's knowledge that it was loaded, failure to give an instruction as to such defense is error.

The theory of the commonwealth in this prosecution seems to be that appellant killed deceased while carelessly and recklessly handling a pistol, with knowledge of its danger to those about him. On the other hand, appellant's defense is that the pistol was discharged accidentally, and without knowledge upon his part that it was loaded, or otherwise dangerous in its then condition.

We see no objection to the instructions that were given to the jury, but the court omitted to give an instruction submitting appellant's defense; that is, accidental killing. On a former trial this instruction No. 4 was given, and it should have been given on this trial.

Consequently the judgment is reversed, and cause remanded for a new trial under proceedings consistent herewith.

Messer v. Commonwealth
90 S.W. 955; 28 Ky.L.Rptr. 920
Court of Appeals of Kentucky.
Feb. 8, 1906.
ACTION: Affirmed.

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

This is the third time this case has been before this court upon appeal. Each of the former appeals resulted in a reversal. The former opinions give such a full statement of the facts of the homicide out of which grew the indictment against and conviction of appellant that we deem it unnecessary to repeat them. Suffice it to say he was charged by indictment with the murder of one Elizabeth Carnes, his paramour, and has three times been found guilty of voluntary manslaughter by a jury of Knox county under that indictment.

One of his complaints on this appeal is that the trial court erred in giving an instruction as to the law of self-defense, as he (appellant) did not upon the trial claim to have killed the deceased in self-defense, but that the homicide was accidental. In giving the instruction in question we assume that the trial judge was following the rule so repeatedly announced by this court that, where no eyewitness to a homicide testifies as to the facts thereof, it is the duty of the court to give an instruction on the law of self-defense. In any event, this instruction was also given on the two former trials of appellant, and all the instructions have been twice approved by this court. This being true, the appellant on the last trial was concluded by this ruling of the appellate court. Besides the instruction could not have been prejudicial to appellant.

It is also insisted for appellant that the lower court erred to his prejudice in refusing him a continuance on account of the absence of the witness Simpson. It appears from the record that the case was set for trial on the third day of the term, and that appellant then announced himself ready for trial without the presence of Simpson, and, though the trial by reason of the congested condition of the docket, was laid over to the eleventh day of the term, appellant declined to take a warrant of arrest for Simpson, which he might have done and possibly have secured his attendance on the eleventh day. Upon the calling of his case for trial on the eleventh day, appellant again announced ready in the absence of Simpson. The trial then proceeded until the appellant had about completed his evidence, when he announced for the first time that he desired the presence and testimony of Simpson, and asked a continuance on account of his absence, and filed his affidavit in support of the motion for a continuance. The lower court refused the continuance, but laid the case over until 10 o'clock a. m. of the following day to enable appellant to procure the attendance of the witness, which was not done. The trial was thereupon concluded. We do not think it was error to refuse the continuance. The appellant's affidavit did not present sufficient grounds for a continuance, and we hardly think it was asked in good faith. Indeed, not only was there no diligence shown by appellant, but in addition it appears from the record that Simpson, though all the time present at the second trial in obedience to a subpoena procured by appellant, was not then introduced by him as a witness.

The appellant has in three separate trials been found guilty of voluntary manslaughter, his punishment on the last being fixed at four years' confinement in the penitentiary; and our reading of the record on this appeal convinces us that the last trial was a fair and impartial one, and that no error was committed during its progress which could have prejudiced his substantial rights.

Wherefore the judgment is affirmed.

Ky.App. 1906.


90 S.W. 955, 28 Ky.L.Rptr. 920


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