George Henson was jointly indicted with certain others for murder committed in pursuance of a conspiracy formed for that purpose. He was convicted, and appeals.

LEWIS, C. J.

The evidence in this case is sufficient to justify the verdict of guilty against the appellant, and also to sustain the conspiracy to commit the offense charged in the indictment. Of the four persons jointly indicted for the murder, Barrett was the only one who had any cause of grievance against Tinsley, the deceased, and he fired but one shot at him, while appellant, who had no excuse whatever for making an attack on the deceased in his own house, fired three. The evidence shows almost conclusively that the deceased did not fire at his assailants at all, but fell mortally wounded in his own house, where the four defendants had gone to make the attack upon him. It is true, the deceased had previously gone to the house of Barrett, and by force compelled a woman said to be his wife to return with him; and the evidence tends to show she was at the time of the attack upon him in the house of the deceased against her will. But whatever excuse Barrett may have had for going to the rescue of his wife, appellant was not justified in going there to assault the deceased.

As appellant was found guilty of manslaughter, it is not necessary to consider the instruction in regard to murder. We perceive no error in the instruction in regard to manslaughter, unless the use of the phrase "impulse of the moment" as a substitute for "sudden heat and passion" be one. But it seems to us appellant was not prejudiced thereby, but actually benefited, for murder even may be committed upon the impulse of the moment, because an impulse may arise from malice, while sudden heat and passion, in legal contemplation, is free of that necessary ingredient of the crime of murder. The lower court not only instructed the jury fully and clearly to find the defendant not guilty upon the hypothesis of necessary or apparently necessary defense of himself, but went further than is proper in telling them to acquit him if he had at the time reasonable grounds to believe any one of those accompanying him was in immediate danger of great bodily harm at the hands of the deceased; for we do not perceive upon what ground appellant's right to shoot the deceased in his own house, in defense of another than himself, could under the circumstances of this case be placed. It seems to us the instructions given were in no respect prejudicial to appellant, but more favorable than the law authorizes; and, as there was no error of law occurring on the trial to the prejudice of his substantial rights, the judgment is affirmed.

Ky.App. 1889.

HENSON v. COMMONWEALTH.