"To be officially reported."

Joseph Eversole was convicted of manslaughter, and appeals.

Reversed.

LEWIS, J.

Joseph Eversole was indicted for murder of John Herd, but convicted of manslaughter, and sentenced to confinement in the penitentiary for 21 years. It appears that Saturday next before the killing, which occurred on Monday, Herd, accompanied by his wife, a sister of Eversole's wife, went to the house of the latter. Next day (Sunday) the two wives went to a house of religious worship, while the two husbands went to some other place in search of whisky. On their way back they stopped at the church house, and met a man named Hacker, who accompanied them to the home of Eversole, the two women having preceded them. After getting dinner, the three men went to a place about eight miles distant to get more whisky, and, returning about 11 p. m., ate supper, and went to bed, Hacker occupying a separate room, there being only two in the dwelling house, while Eversole and wife and Herd and wife slept in the same room. Where the children slept does not appear. A short while before daylight, Herd commenced quarreling with and threatening his wife, so boisterously and violently that she got out of bed and left the house. After Eversole and wife got out of bed, the three sat about the fire. Herd still continued threatening his wife, and, in addition, maligned her father, who was dead, and spoke disrespectfully of her mother. The weather being cold, Eversole's wife carried a blanket to Herd's wife, who remained outside of the house through fear of her husband; but finally, assuming he was somewhat pacified, Herd's wife came back to the house, but he again quarreled with her, and drew a poker with purpose to strike her, and was only prevented by Eversole's wife, who interposed for protection of her sister. At the breakfast table, Herd demanded a toddy of whisky be given to him, but, upon failure to get it, again commenced to boisterously threaten his wife, who was still kept out of the house through fear of him. After breakfast, Eversole and Hacker left the house for the purpose, as disclosed by a witness for the commonwealth, of "getting away" from Herd. They, however, returned to Eversole's house, and, after remaining a short time, Eversole announced his intention of going to a place indicated to look after his hogs, and, starting, was followed by Hacker and Herd; but, after proceeding a short distance, Eversole concluded to return to his house, and was again followed by Herd and Hacker; and after getting into his yard, and close to his porch door, the evidence of all those witnesses who were near enough to see all that occurred shows Herd, with an open knife, demanded Eversole's pistol, at the same time springing towards him, and then Eversole fired three shots, which resulted in his death. The only cause Herd had, so far as disclosed by the evidence, for quarreling with and threatening his wife, was that she had hid the whisky, and he finally charged Eversole with conniving at and aiding her in doing so. The evidence discloses that Eversole, after breakfast, borrowed from Hacker the pistol with which the fatal wounds were inflicted; but after doing so he went away from his own house, in order to avoid a conflict with Herd, and upon his return, finding him still in a quarrelsome mood, again left, evidently for the same purpose; and only after being followed by Herd up to his own door, and assaulted with an open knife, did he use the pistol.

The verdict in this case, as the record stands, shows that the jury were either lacking in intelligence or controlled by passion and prejudice, and it is somewhat surprising the circuit judge would let such a verdict stand; for, notwithstanding the deceased had acted like a brute and bully, and accused, according to the evidence of those present, after twice leaving his house to avoid a collision, shot him only when assaulted in his own yard, and on his way into his own house, the jury fixed his punishment by confinement in the penitentiary for the utmost length of time prescribed by statute in case of manslaughter.

The court erred in admitting the evidence of the witness Nancy Potter, who testified that, some time after the occurrence, the accused came to her house excited, and seemingly afraid of being killed, and said he was a shooting man, and had killed two men. Such evidence did not tend to illustrate the manner in which the homicide in question was committed, nor the motive of accused for committing it, but was calculated to, and no doubt did, excite prejudice of the jury.

Instruction No. 4 is erroneous and prejudicial. It was proper to tell the jury to acquit the accused (Eversole) if, at the time he shot and killed John Herd, he believed, and had reasonable grounds to believe, he was then and there in immediate danger of death, or the infliction of great bodily harm, at the hands of said Herd; but it was not proper to add, as a further condition, that the jury should believe the killing was necessary, or seemed to defendant, in the exercise of a reasonable judgment, to be necessary, in order to avert or "escape" said danger, real, or to the defendant apparent. The word "escape" is not proper under any circumstances, and it is particularly improper and misleading when used in reference to a person accused of homicide, who is assaulted in his own yard, and near to his own dwelling house. He there may stand his ground, and is not required to flee or escape. He is, as well upon his own premises as elsewhere, obliged by the law to avoid taking human life when there is no real or apparent danger of then and there losing his own life or suffering great bodily harm at the hands of his assailant, but, being at his own dwelling house, he is not required to escape-that is, flee further-in order to do so.

The judgment is reversed for a new trial consistent with this opinion.

Ky.App. 1894.

EVERSOLE v. COMMONWEALTH.