
    Murphy v. Commonwealth
    (Decided November 11, 1924.)
    Appeal from Boyd Circuit Court.
    1. Criminal Law — Instructions, Grouping Together and Giving Undue Prominence to Certain Particular Pacts, are Erroneous. — Instructions, grouping together and giving undue prominence to certain particular facts, to exclusion of other facts which jury has the right to take into consideration, are erroneous.
    2. Homicide — Prior Threats, Language, and Conduct of Deceased are Admissible as Substantive Evidence. — Where self-defense is set up, prior threats, as well as language and conduct of deceased, are admissible as substantive evidence.
    3. Homicide — Instruction on Self-Defense, Singling out Prior Threats and Conduct of Deceased and Limiting their Effect, was Erroneous. — An instruction on self-defense, stating that prior threats and conduct of deceased would not justify defendant in shooting at time of killing, unless he then and there believed, and had grounds to believe, that deceased was about to kill him or inflict ■on him great bodily harm, was erroneous, as singling out and limiting effect of prior threats and conduct.
    WAUGH & HOWERTON for appellant.
    PRANK E. DAUGHERTY, Attorney General, and CITAS P. CREAL, Assistant Attorney General, for appellee.
   Opinion op the Court by

Judge Clay

Reversing.

This is an appeal from a judgment based on a verdict finding appellant guilty of manslaughter, and fixing his punishment at five years’ imprisonment in the penitentiary.

The facts are these: The deceased, Dan McKnight, was an uncle of appellant, and, som,e time prior to the homicide, appellant was required' to appear before the grand jury and give evidence of McKnight’s violation of the prohibition act. On the afternoon of the homicide McKnight left home with Jam'es Blair and John Buckley and they went up a hollow to a coal bank. “While they were near the tipple, appellant and Alvin Hutchison came along the hill en route to a point above the coal bank. On seeing appellant John Buckley called him and told him that he wanted to see him. Appellant hesitated, but on being called again he went to “a point near the coal tipple to meet Buckley. While talking with Buckley, McKnight broke into their conversation and asked ap-pellant why he had been telling damn lies on him. Appellant replied that he had not told any lies, bnt MeKnight insisted that he had, and repeatedly cursed and called appellant vile names. During the quarrel MeKnight walked up on the bank in front of appellant. According to James Blair, a witness for the Commonwealth, the deceased did not have his pistol in his hand, nor attempt to harm appellant, but he admits that he had started to leave and his back was turned toward the combatants. When the shooting was over, however, he found MeKnight’s pistol lying by his side. According to appellant, the deceased, during the altercation, was moving around him in a circle so that the deceased was on one side and the embankment on the other. When about eight feet away the deceased drew his pistol from his pocket and appellant then fired. Alvin Hutchison testified that he saw there was going to be trouble and turned and walked away. At that time MeKnight had his hand on his hip pocket, but he did not see MeKnight put his hand in his pocket. During the shooting he was looking at appellant. There was further evidence of threats made by the deceased against appellant.

In addition to instructions on murder, manslaughter, self-defense and reasonable doubt, the court gave the following instruction:

“The jury are further instructed that although you may find and believe from the evidence that the deceased, Dan MeKnight, previous to the occasion when he was shot and killed had some previous difficulty or difficulties with the defendant, Ed. Murphy, and then or at other times threatened to kill the defendant, or do him some great bodily harm, that these acts or threats and conduct of the said Dan McKnight did not justify the defendant in shooting said MeKnight at the time and on the occasion in question unless the defendant then and there believed, and had reasonable grounds to believe, that the said Dan MeKnight was then and there about to kill him, or inflict upon him some other great bodily harm.
“And the jury are further instructed that although they may believe from the evidence that on the occasion in question' when the said Dan McKnight was shot and killed that he used in and in the presence of the defendant some abusive language that his conduct in doing so did not justify the defendant in killing him, or even shooting at him with a pistol.”

We have repeátedly condemned instructions that group together and give undue prominence to certain particular facts to the exclusion of. other facts which the jury has the right to take into consideration, and have stressed the importance of giving an instruction on self-defense in the usual form, thus leaving the question to be determined by the jury in the light of all the facts, whether relied on by the Commonwealth or the accused. Howard v. Commonwealth, 202 Ky. 711, 261 S. W. 246; Mullins v. Commonwealth, 172 Ky. 92, 188 S. W. 1079; Commonwealth v. Robinson-Pettet Co., 181 Ky. 702, 205 S. W. 774; Urban v. Commonwealth, 196 Ky. 775, 245 S. W. 852. Following this rule it has been held that an instruction on self-defense which grouped together the evidence of former acts of violence on the part of the deceased, and charged that the accused had the right to bear arms openly and keep a lookout for deceased, and that if he casually met him he need not wait to be assaulted but might consider the past, and that, if he believed he was in apparent danger of great bodily harm at the hands of the deceased, he might shoot him, was improper. Reynolds v. Commonwealth, 114 Ky. 912, 72 S. W. 277. It has also been held improper to tell the jury that they could convict on circumstantial evidence, Whitehead v. Commonwealth, 192 Ky. 428, 233 S. W. 890; Bullington v. Commonwealth, 193 Ky. 529, 236 S. W. 961; or that they could not convict on such evidence unless the circumstances were of such character and tendency as to exclude every rational theory of the case consistent with the prisoner’s innocence, 11 Bush, 282; or that the court wanted the jury to try the case alone on the evidence given by the witnesses on the witness stand, “including the dying declaration of the deceased.” Jones v. Commonwealth, 186 Ky. 283, 216 S. W. 607. There are cases, of course, where evidence is admitted for the purpose of impeachment, or is given by an accomplice, and it is necessary to give an instruction limiting its effect, but the case in hand is not of that character. The prior threats as well as the language and conduct of the deceased were admissible as substantive evidence. The jury had already been instructed to acquit the accused if they believed from “all the facts and circumstances proven in evidence” that, at the time he shot and killed the deceased, he then believed and had reasonable grounds to believe that the deceased was then and there about to kill him, or inflict upon bim some great bodily harm, &c., and it was just as improper to single out and limit the effect of the prior threats and language and conduct of the accused at the time of the difficulty as it would have been to particularize and minimize any other fact or circumstance tending to sustain the plea of self-defense. It follows that the instruction complained of was erroneous, and, the case being a close one on facts, we are not prepared to say it was not prejudicial to the substantial rights of the accused.

Judgment reversed and cause remanded for a new trial consistent with this opinion.  