Court of Appeals of Kentucky.

HINKLE

v.

COMMONWEALTH.

June 8, 1889.

Appeal from circuit court, Knox county; R. BOYD, Judge.

"Not to be officially reported."

John T. Hinkle and others were jointly indicted for murder.

Hinkle, being tried separately, was convicted of voluntary manslaughter, and appeals.

Where deceased was killed in an affray in which a number of shots were fired, and there was testimony tending to show that the shots were fired by persons who did not belong either to defendant's party or to the party led by deceased, it was error for the court, in its instructions, to assume as a matter of fact that deceased was killed by one of the defendants.

An indictment against defendant and two others for murder alleged a conspiracy between them. Defendant obtained a separate trial. There had been a fight, with indiscriminate firing,--some by parties unknown. The court in its instruction assumed that deceased was killed by one of the three, and charged that if defendant killed deceased in sudden passion, or aided either of the others in so doing, he was guilty of manslaughter. Held error, and that the court should have charged that if they believed deceased was killed by either of the other defendants, not in necessary self-defense but in sudden passion, and that the accused was aiding in sudden passion, and not in self-defense, he was guilty of manslaughter.

PRYOR, J.

There was indiscriminate firing between the parties indicted and those united with Hubbard, who lost his life in the fight. The appellant, Hinkle, was indicted jointly with those who were with him at the time, and who, from the proof, were participating in the rencounter. Hinkle, it seems, was the leader on the one side, and Hubbard on the other, and the fight originated from previous differences between the two men. Hubbard was shot and killed, and on the calling of the indictment against Hinkle and his confederates, in which a conspiracy was alleged for the murder of Hubbard, Hinkle demanded and was granted a separate trial. Shots seem to have been fired by parties unknown, or who at least were not directly with either party at the time. The error complained of arises from instruction No. 2, under which appellant was convicted, in which the court assumes, as a matter of fact, that the deceased was killed by either Hinkle, Goodin, or Becket, and proceeds to tell the jury that, if the killing was in sudden heat and passion, by Hinkle, he is guilty of manslaughter, or, if he aided either Goodin or Becket in the killing, he is guilty of manslaughter. The instruction as to Hinkle is proper, if the shooting was done by him. The jury should have been told that, if they believed beyond a reasonable doubt that the deceased was shot by either Goodin or Becket, and that the shooting was in sudden heat and passion, and not in the necessary self-defense of either, and that the accused, in sudden heat and passion, was present, aiding and abetting in the shooting that resulted in killing the deceased, and not acting in his necessary self-defense, he is guilty of voluntary manslaughter. The jury did not believe that any conspiracy existed, as is manifest by the verdict for voluntary manslaughter.

The judgment is reversed and remanded for proceedings consistent with this opinion.

Ky.App. 1889.

HINKLE v. COMMONWEALTH.

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