
    
       Case 97 —
    December 20, 1888.
    Miller, &c., v. Commonwealth.
    AOTEAL 3?ROM LAUREL CIRCUIT COURT.
    1. Criminal Evidence — Uncommunicated Threats. — Where it is a material inquiry, upon a trial for murder, whether the accused' or the deceased began the difficulty, it is competent, upon this issue, to prove threats by the deceased, although they had not been communicated to the accused.
    2. Evidence Showing Accused Advised Absent Witness not to Leave. — Pacts having been gotten prominently before the jury which were calculated to induce the suspicion that an absent witness had been improperly induced to absent himself, because he would, if present, testify to facts prejudicial to the defense, the' court erred in refusing to permit the father of the absent witness to state that one of the defendants advised his son not to go.
    W. O. BRADLEY por appellant.
    1. The court should have granted a new trial, because the jury found ■ their verdict by lot; and while this court has held in Redmon v. •Commonwealth, 82 Ky., 334 (overruling P. & E. R. Co. v. Commonwealth, 80 Ky., 150), that it has no jurisdiction to reverse for such an error, it seems that there should be a reversal for any error prejudicial to the substantial rights of the defendant. (Amendment to section 340 of Civil Code.) '
    2. The coui’t should have allowed the defendant to prove that he had advised the absent witnesses to remain in Kentucky.
    3. The uncommunieated threats were admissible in evidence, as they were important for the purpose of determining whether or not the accused acted in self-defense. (Campbell v. People (16 111., 17), 61 Am. D., 50; Carroll v. State, 23 Ala., 28; Pitman v. State, 22 Ark., 354; State v. Sloan, 47 Mo., 604; State v. Keen, 50 Id., 357; Roberts v. State, 68 Ala., 156; State v. Turpie, 77 N. C., 473; Wharton’s Horn., sec. 695; Horr & Thomp. Self-defense, 487, 521, note 574; Hart, Jr., v. Commonwealth, 8 Ky. Law Rep., 714; Wharton’s Crim. Bv., sec. 757; Burns v. State, 49 Ala., 370; People v. Arnold, 15 Cal., 476; People v. Scroggins, 37 Id., 251; People v. Alvitre, 55 Id., 263; People v. Travis, 56 Id., 251; People v. Tampkin, 62 Id., 468; s. c., 24 Am. Rep., 455; Little v. State, 6 Bax., 491; Wiggins v. People; 93 U.S.,, 465.)
    P. ~W. HARDIN) Attorney-General, por appellee.
    Brief not in record.
    
      
       This case has only recently been ordered to he reported, and, for that reason, has not been reported sooner.
    
   CHIRP JUSTICE LEWIS

delivered the opinion op the court.

Henry Miller and John Bosse having been jointly indicted for the murder of Larkin Bird, and convicted of manslaughter, prosecute this appeal.

It appears the deceased, whose reputation was proved to have been that of a quarrelsome and dangerous man, had, a short time before getting to the place he was killed, drawn his pistol on three men and fired at another. Unless the result of the aimless wandering-of a restless drunken man, for he was under the influence of liquor, there is nothing to satisfactorily show why the deceased stopped at the particular place he did, which was about one hundred and fifty yards-from the dwelling-house of Bosse. The evidence is, that soon after getting there, he, being alone, commenced to fire his pistol, some of the shots, of which there were three or four, being fired in the air, or at random; one of them, as a witness states, was fired at his own hat, which he threw up for the purpose; another shot struck in the yard of Bosse, and, as his wife stated at the time, came near hitting her. There is also evidence he called the name of Bosse in a disrespectful manner. Immediately after his wife cried out she was near being struck, Bosse went into his house and got two guns and a pistol, and started with them towards the deceased, intending, as he testified, to give one of the guns to his son; but Miller took one of them, and together they approached the deceased, and when they got near to him, Bosse, as he states, presented his gun and commanded the deceased to lower his pistol, and, it being* done, he then lowered his gun also. Either just before or after Miller and Bosse ar-' rived, about which there is some conflict in the testimony, a man named YYilliams, who had previously been in company with the deceased, and was also offended at him, appeared and took his- pistol from him, and, according to the testimony of Bosse and Miller, snapped it at him; but Williams’ horses just at that .time becoming frightened, he left the place in pursuit of them, and in a short time thereafter Miller shot and killed the deceased. No one was at the place when the shot was fired except Bosse, Miller and the deceased, though several witnesses testify they had a clear view of the parties at the time. The evidence is uncontradicted that the deceased, after the pistol was taken from him, still had a knife, the blade of which was open. Both Bosse and Miller testify that, when shot, the deceased was approaching Miller with his open knife, held in a threatening position, and making an effort, at the same time, to seize Miller’s gun. They are corroborated by other witnesses as to the deceased having his knife opened and approaching Miller; but one or more witnesses stated the deceased was, at the time he was shot, making no movement or demonstration towards Miller.

Appellant, during the trial, offered to prove, and avowed the witness, if permitted to answer the questions propounded, would state the deceased told Trim the day before the homicide he intended to kill appellant, Miller, on sight; but there being no proof that or any other threat against him by the deceased was previously communicated to Miller, objection to the question was sustained, and it was not permitted to be answered. In the process of forming an opinion, in the absence of positive and convincing evidence as to wliat has been, as well as in conjecturing what will be, the conduct of a particular person in a given state of case, the first and most natural inquiry is, what motive had or has he for doing it? Thus, in determining, in the absence of eye-witnesses, or when the '■evidence is contradictory and uncertain, as to who of two persons began a conflict resulting in the death of one of them, it is not only material, but often of vital importance, to ascertain which one of them, if either, was actuated by motive of gain or revenge; and it is often sufficient to discredit the positive testimony of witnesses to show that a person charged with an offense had no motive for committing it, or a strong 'motive for not doing it.

In this case the guilt or innocence of Miller materially depends upon whether, at the time he shot, the deceased was advancing upon him with a drawn knife, and, consequently, whether he had reasonable grounds to believe, and did believe, he was then in danger of losing his life or suffering great bodily harm, or whether he shot wantonly and without legal excuse. In determining that question of fact, about .which the contradictory testimony of the witnesses was calculated to create some doubt that might have been resolved against the accused, it seems to us it was entirely pertinent to show threats by the deceased against the accused; for if the former was possessed of a feeling of hatred towards the latter, and had formed a determination to take his life, the inference would be at least reasonable that he was the aggressor.

There is a distinction between the inquiry, whether the slayer of his fellow-man was induced to do the deed by a reasonable apprehension, founded upon threats made by the deceased, communicated and known to him, and the question of fact, whether the one or the other commenced the conflict; for in the latter .case the inference the deceased began it may arise from the existence of his hatred and revenge, whether known to the other or not. The competency of such evidence has been expressly recognized by this court in Hart v. Commonwealth, 85 Ky., 77.

One of the witnesses made the following statement, •obviously in answer to questions by the Commonwealth’s Attorney: “My son was standing near me when the killing took place; he is going on twenty-one years of age; he is in Arkansas; he bought his •own ticket to go; he worked under me and another man, and I was employed by the Star Coal Company, •of which defendant, Bosse, is a member, and we paid him. He did not go away to keep from being a witness ; he had been talking of going away for a year before the killing, and was waiting to make money to go on; he was a witness on the examining trial of this case.”

The answers of the witness show that the Commonwealth’s Attorney was persistent in his endeavor to show the witness had been, by bribery, or in some other improper way, induced, by Bosse to leave the State to prevent his giving damaging testimony against himself and Miller; and although the witness protested Ms son left voluntarily, still the facts that. Bosse was. a member of the coal company, that Miller was an inmate of his family, and the father of the absent witness was his employe, all being got prominently before - the jury, were ■ calculated to induce the suspicion, if not belief, that the witness had. been improperly - induced to’ absent himself, because-he would, if present, have testified to facts prejudicial to the. .defense. We, therefore, think the court-erred in refusing to permit the witness Hammons to state, as he would have done, that “Bosse advised his son not .to go, and that Kentucky was a better State than Arkansas.”

For the errors indicated, which, we think, were prejudicial to the substantial rights of the defendants, the judgment as to both of them is reversed, and cause, remanded for a new trial.  