|Appeal from Circuit Court, Knox County.|
|Appeal of Vic Messer for Murder of Unknown Person|
|Reversed and Remanded|
Court of Appeals of Kentucky.|
March 15, 1905.
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.
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