14 Ky.L.Rptr. 260, 93 Ky. 318
Court of Appeals of Kentucky.
Smith v. Commonwealth.
Sept. 24, 1892
ACTION: Reversed.

Appeal from circuit court, Knox county.
"To be officially reported."
William Smith was convicted of manslaughter, and appeals.

A prisoner and his guard, each having pistols, fired "at the clouds," and then exchanged pistols. Immediately the pistol which the guard was seen handing the prisoner was fired two or three times, and the prisoner fell mortally wounded, exclaiming that he believed he was shot. The guard's statements tended to show that he fired the fatal shot, but not that he killed the prisoner intentionally. Held, that it was error to instruct the jury that defendant was guilty of manslaughter if, while the relation of prisoner and guard existed, he "negligently, in discharging firearms, shot and killed" decedent, his dereliction in his duty as guard being immaterial. J. Smith Hays and John T. Hays, for appellant.

W. J. Hendrick, for the Commonwealth.

Lewis, J.
The deceased, James Bailey, had on the same day of his own death killed a man named Minks, and was arrested, and taken to Barboursville. But, the examining trial being put off, he was given the right to employ a guard, and by the accommodating constable permitted to select the person to act as such, who was appellant, Smith. The prisoner and his guard, each being armed, the former with a large and the latter with a small pistol and shotgun, started from town, without presence of the constable, to go to the residence of the prisoner's father, about 12 miles distant, to return on day of the trial, or, for all the officers apparently cared, never. On the way they met one Gum Hammons, who permitted the prisoner to ride with him on his mule, the one he started from town on having been taken from him by the owner. When they-the prisoner, guard, and Hammons-got within a short distance of the drawbars opening into his father's farm, the first mentioned proposed to fire his pistol at a tree, but was dissuaded because the mules might become frightened, though it was agreed he might shoot when they got to the drawbars. Accordingly, upon arrival there, all dismounted, and the prisoner, now deceased, commenced shooting with the large pistol, not at a mark, as was suggested to him, but, as he said was preferable, "at the clouds," and his guard, now appellant, followed his example. After two shots were fired by each of them, the deceased called for the small pistol, at the same time handling appellant the large one, muzzle foremost, back over his shoulder, (whether the right or left is not stated,) which he took, handing the small one, breech foremost, to the deceased. The latter pistol was immediately fired three or four times, but by whom Hammons was not able to state, because he says his attention was at that time given to his mule. When he turned his face towards the other two he saw the deceased sinking back as though going to sit down, and, throwing his hands behind him, said, "Bill, I believe I am shot," and the small pistol fell directly behind him. The pistol ball, which caused death in about five minutes, entered his back below the shoulder blade, and to right of the spine, ranging downward, and towards the left side. The position of appellant at the time of the shooting was to the left of where the deceased stood, and upon higher ground about two feet. If Hammons, the only other eyewitness besides appellant, testified truthfully, it does not seem to us at all probable the latter shot the deceased; for it was hardly possible for him, occupying the position he as well as Hammons testified he did, to have shot the deceased in the place he was struck, and given to the bullet the direction it took; nor is it natural or reasonable, if he had done so, that the deceased would have with his last breath used words indicating he had himself done it, and that appellant was not to blame. Besides, the deceased having handed the large pistol to appellant, asking at the same time for the small one, which Hammons states he saw the latter in the act of giving to him, it is scarcely credible that as many as three shots were afterwards fired with it by appellant instead of the deceased.

But there is testimony of statements subsequently made by appellant tending to show he, and not deceased, fired the shot that caused the death, though there is none from which it can be reasonably inferred he intentionally shot or killed deceased. The court gave an instruction applicable to a case of murder, for which appellant was indicted, the usual instruction as to manslaughter, and also the following: "If the jury shall believe from the evidence, to the exclusion of a reasonable doubt, that the deceased was under arrest and in charge of the defendant as a guard, then it was his duty, not only to prevent an escape by deceased, but also, as far as he reasonably could, to protect deceased from violence; and if, while such relation of prisoner and guard existed, they shall believe from the evidence, to the exclusion of a reasonable doubt, that the defendant, either carelessly or negligently, in discharging firearms, shot and killed said Bailey, they will find him guilty of manslaughter, and fix his punishment at confinement in the penitentiary not less than one nor more than twenty-one years, even though they may believe that defendant did not intend to shoot deceased." The verdict of the jury reads thus: "We of the jury agree and find the defendant, Smith, guilty of killing by the reckless handling of firearms, and fix his punishment two years in the state prison." The jury seems not to have returned a verdict, in terms, of manslaughter, but undertook to describe in their own language the offense of which they concluded appellant was guilty, and to affix the punishment provided by statute for the technical offense of manslaughter. Undoubtedly an act may be so heedless and incautious as to necessarily be deemed wanton and unlawful, though there may not be any express intent to do mischief, and the party who thereby causes death will be guilty of manslaughter.

On the other hand, it does not necessarily follow, when one of two persons, remote from other people, accidentally kills another during the process of voluntarily exchanging loaded weapons, or by accidental discharge of his own weapon while they are both engaged in shooting at a mark or into the clouds, that such act is of such reckless and wanton nature as to be felonious or criminal. Nor does it seem to us probable that the verdict of the jury would have been returned but for the instruction quoted. Whether appellant was guilty or not of manslaughter must depend upon the time, place, and actual circumstances under which it occurred, without regard to the relation of guard and prisoner, to which the court, we think erroneously, called the attention of the jury. If appellant was derelict in his duty as guard, he has to answer directly therefor otherwise than under an indictment for murder, and his failure to do duty as such should not be considered in determining whether while he and deceased were willingly, and not, we think, unlawfully, engaged in firing their pistols, he killed him in such negligent and careless manner as to be wanton and criminal. It seems to us the question of appellant's criminality should be determined without regard or reference to the relation of guard and prisoner, and the instruction mentioned is erroneous, and was well calculated to mislead the jury, to appellant's prejudice. We think there ought to have been given an instruction on the subject of involuntary manslaughter, punishment for which is fine and imprisonment.

Judgment reversed for new trial.

Ky.App. 1892.
Smith v. Commonwealth.
20 S.W. 229, 14 Ky.L.Rptr. 260, 93 Ky. 318


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