
    CASE 52. — PROSECUTION AGAINST JONAS SMITH FOR PATRICIDE.
    April 27, 1909.
    Smith v. Commonwealth
    Appeal from McCracken Circuit Court.
    W. M. Reed, Criminal Judge.
    Defendant convicted and appeals.
    Reversed.
    1. Criminal Daw — 'Continuance'—Abuse oí Discretion.' — When the indictment against defendant for a capital crime was returned, the court set the trial for four days later, and appointed an attorney to defend. Counsel, after conference with defendant, at once placed subpoenas for certain witnesses in the hands_ of the sheriff, but, when the case was called for trial, applied' for a continuance because some of the witnesses had not been served, some of them were absent, and counsel had not been able to prepare a defense. The court, ascertaining that the' attendance of all the absent witnesses save one could be pro- ' cured by the time they were needed, directed defendant’s counsel to state the facts which the other witness would testify to, and ordered the affidavit to.be read to the jury, and directed the- Commonwealth to admit the truth thereof, and' refused the continuance. Defendant was convicted and sentenced to he executed. Held, that the court abused its discretion, denying the continuance.
    2. Homicide — Voluntary Manslaughter. — If accused unlawfully and willfully .shot and killed deceased in a sudden affray, or in a sudden heat and passion, with a felonious intent to kill tor if the killing was the direct and natural, though unintentional, result of a reckless, wanton, or grossly careless use of a gun by defendant in struggling with deceased for its possession when he knew it was dangerous -to life, if handled in that manner he would be guilty of voluntary manslaughter.
    3. Homicide — Involuntary Manslaughter — If the shooting and death of deceased resulted from the unintentional and careless discharge of a gun by defendant in struggling with deceased to retain the gun to shoot another, when deceased was trying to prevent such shooting, defendant would be guilty of involuntary manslaughter.
    JAS. CAMPBEtLD for appellant.
    JAS. BREATHITT, Attorney General, and TOM B. McGREGOR, Assistant Attorney General, for the Commonwealth.
   Opinion op the court by

Chief Justice Settle.

Reversed.

The appellant, Jonas Smith, was indicted in the court below for the murder of his father, Amos Smith. He was brought to trial within four days of the return of the indictment, by verdict of the jury declared guilty as charged, and given the death penalty. Of that verdict, the judgment entered thereon, and the refusal of the circuit court to grant him a new trial he complains; hence this appeal.

The facts leading to and connected with the homicide were few and simple. It appears' from the evidence that appellant and his father were negroes, the latter being an old man 70 years of age, and that both lived with a brother of the former and son of the latter in the city of Paducah. The evidence showed appellant to have been a violent and reckless man, and that he had served a term in the penitentiary, but that he and his father had always been on good terms. It was also shown by the evidence that appellant and one John Polk, also a negro, were enemies; that shortly before the killing of Amos Smith appellant had threatened to kill Polk; and that on'the morning of the day of the homicide appellant purchased a number, of gun cartridges. It was further shown by the evidence that appellant, about 7 ,p. m. of that day, met John Polk on the street near his home, which was close to that of appellant, and with a shotgun attempted to shoot Mm, but that he was prevented from doing so by the act of Polk in grabbing the gun and calling for help; that the father and two brothers of Polk, hearing the cries, came-to his rescue, and assisted him in holding or trying to take the gun from appellant. At that juncture appellant’s father, Amos Smith, hearing the cries and seeing the altercation, appeared on the scene, and at once undertook to assist the Polks in wresting the gun from his son. When he took hold of the gun, the Polks released their hold upon it, and left to him the task of taking it from appellant. In the struggle that continued between appellant and his father for the possession of the gun the weapon was discharged, and the balls entering the body of thé latter caused his death. According to the testimony of several of the Polks, during the struggle between father and son over the gun the son in an angry manner, and with an oath, told his father, if he did not release his hold upon the gun, he would shoot him, and this declaration was immediately followed by the discharge of the gun. Appellant denied the making of such a declaration, hut admitted the shooting of his father, and claimed that it was purely an accident.

Although numerous grounds were urged for a new trial, but two of them impress us as being worthy of consideration. These are: (1) the failure of the circuit court to grant the continuance asked by appellant before the beginning of the trial; (2) its alleged failure to properly instruct the jury.

When the indictment was returned, the court informed appellant that the case ought to be disposed of at that term, and ordered that it be set for trial four days later. Being then advised by appellant that he had not secured counsel and was 'without means to employ one, the court appointed a member of the bar present to defend him. The counsel named accepted the appointment, and, after a hasty conference with appellant, at once procured and placed in the hands of the' sheriff subpoenas for certain witnesses whose names appellant furnished him. When the ease was called for trial on the day fixed by the court, appellant, through his counsel, informed the court that he was not ready for-trial, and moved that the case be continued until the next term of the court, filing in support of the motion the affidavits of himself-and counsel, in each of ydfiph was set forth the absence of certain witnesses, some of whom had not been served with the subpoenas .issued at appellant’s instance on the day of the return" of the indictment, and the further fact that appellant’s counsel had not been able to fully investigate the facts connected with the homicide for which appellant was .indicted, or to properly prepare his defense. The court having ascertained that the attendance' of all the then absent witnesses, save one, could be procured by the time they would be needed, refused the continuance, and, requiring appellant to state, in the form of an affidavit, the material facts to which the one witness whose attendance could not be procured-fwould' testify, ordered that it be read on the trial ás the deposition of such witness and admitted by the Commonwealth as true. To the ruling of the court ir^ refusing the continuance the appellant duly "excepted, and tlie trial proceeded with the result previously^ indicated. Under the circumstances of this case the court’s refusal of the continuance asked by appellant was an abuse of discretion. The appellant may be a brutal and dangerous man, but by the showing of the record he is certainly an ignorant one. His penniless and friendless condition, together with his ignorance and the fact that his counsel between the time of his appointment to represent him and the beginning of the trial was almost constantly engaged in discharging Ms professional duties in other cases pending in the same court made it 'well'nigh impossible for Mm to properly prepare, appellant’s case for trial within the three or four days’ time allowed - by the court. That appellant’s counsel is a capable lawyer all who know him will concede; but, while the record manifests the skill and care with which under the circumstances he conducted appellant’s defense, it also shows' the embarrassments that inevitably result from the hasty and incomplete preparation of a case. He should have had reasonable opportunities for conferring with his cliént and the members of his family; reasonable time for looking up witnesses, and ascertaining their testimony, and for making such further preparation as would secure for his client a fair and impartial trial.

■' "We are also satisfied that the jury-were not instructed as to all the law of the case. Instruction No. 1 was properly given, for'it correctly advised the jury of the law in respect to the crime of murder, and told them iñ what state, of case thej^ would be authorized to find appellant guilty of that crime, and what in that event should be his punishment. We can not, however, approve instructions 2 and 3 as given by the lower court. They fall short of an accurate statement of the law as to voluntary and involuntary manslaughter, and altogether failed to submit to the jury the question of whether the killing of deceased resulted from sudden heat and passion on the part of appellant excited by the interference of the former in trying to wrest from him the gun to prevent the shooting of Polk. “It is essential to the commission of voluntary manslaughter that the homicide should have been willfully and intentionally committed (i. e., in a sudden affray or in sudden heat and passion), or under suclil-eircumstances as to strike one at first blush as so reckless and wanton as to be felonious, though apparently not intended by the perpetrator.” Montgomery v. Commonwealth (Ky.) 81 S. W. 264; 26 R. 356, 1 Bishop’s New Crim. Law, Sec. 314; York v. Commonwealth, 82 Ky. 360, 6 R.334; Smith v. Commonwealth, 93 Ky. 318, 20 S.W. 229, 337, 14 R. 260. On the other hand, if the homicide resulted from the careless and unintentional discharge of the gun by appellant in, the' doing of an unlawful act, sueh as - struggling with his father to retain the gun when the latter wás holding it to prevent him from wrongfully shooting Polk, the act was involuntary manslaughter and) punishable at the common'law by fine or imprisonment in jail, or both, in any amount and for any length of tinfe, in the discretion of the jury. Brown v. Commonwealth, 122 Ky 626, 92 S. W. 542, 28 R. 1335; Ewing v. Commonwealth (Ky.) 111 S. W. 352, 33 R. 352, 129 Ky. —. In lieu of instructions 2 and 3, .the court should on a retrial give the following:

Although the jury may believe, from the evidence beyond a reasonable doubt that the defendant shot and killed deceased with a gun, loaded as in-instruction No. .1 described, if they believe from the evidence that he committed tire act without previous malice, but shall believe from' the evidence beyond a reasonable doubt that such shooting and killing was unlawfully and willfully done by defendant in a sudden affray or in sudden heat and passion and with the felonious intent to kill deceased, or shall believe from the evidence beyond a reasonable cloirbt that the shooting and killing of deceased, if done by defendant, was the direct and natural, though unintentional, result of a reckless, wanton, or grossly careless use or handling, if any, of said gun by defendant in struggling with deceased for its possession, when he knew it was dangerous to life if so handled by him, they should find him guilty of voluntary manslaughter, and fix his punishment at confinement in the penitentiary not less than two nor more than twenty-one years. .

If, however, they should believe from the evidence beyond a reasonable doubt that defendant shot and killed deceased with a gun, and that such shooting and death of deceased resulted from the unintentional and careless discharge of the gun by him in doing and unlawful act, such as struggling with deceased to retain the gun for the purpose of shooting John Polk, if he was so struggling for the possession ,of the gun for such purpose, when deceased was trying to prevent him from shooting said Polk, if he was so trying, they should in that event find defendant guilty of involuntary manslaughter, and fix his punishment at a fine in any amount, or imprisonment in jail any length of time in the discretion of the jury. If the jury believe from the evidence that the killing of deceased by defendant was not murder, voluntary or involuntary manslaughter, as defined in the instructions, but was unintentional and accidental they should acquit him.

In addition to instruction No. 1, and those herein directed to be given, the circuit court will again give the instructions numbered 4 and 5. The record fails to disclose any error in the admission or rejection of testimony.

On account of the errors indicated, the judgment is reversed, and cause remanded for a new trial consitent with this opinion.  