
    Lee v. Commonwealth.
    (Decided March 14, 1911.)
    Appeal from Clinton Circuit Court.
    Commonwealth’s Attorney — Latitude in Argument of Case. — No definite rule -can be -laid down for the guidance and. direction of a Commonwealth’s Attorney or other lawyer.in the presentation-of his case, further than'that.'.he .must deal fairly with-the evidence ;-and the applicatipn.of-tHe law, as-given by the;courts-to. the evidence. A broad latitude is necessarily allowed him, -and it is only when it is made clearly to appear that he has gone outside of the reeord for his facts, and sought by this method to take an undue ■and unfair advantage of the accused, that the. court is justified 3h interfering-
    ELZY BERTRAM, W- G- KEEN and J. Q. EWING for appellant.
    JAS. BREATHITT, Attorney General, and TOM B- McGREGOR. Assistant Attorney General, for appellee.
   Opinion op the Court by

Judge Lassing

Affirming.

This is an appeal from a judgment of the Clinton Circuit Court, sentencing John Allen Lee to confinement in the State penitentiary for three years for wilfully and maliciously shooting and wounding one James Means. The evidence shows that appellant and his family lived in Tennessee near the State line. James Means likewise lived in Tennessee, a near neighbor to appellant. On the evening of the day before the difficulty occurred in which appellant is charged with having shot James Means, his son Tom and Means had some trouble which resulted in Tom’s being shot. Appellant and his son, James William, learned that James Means had crossed over into Clinton county, Kentucky, went to Albany, the county seat, presumably for the purpose of taking steps to have Means arrested. Upon a conference with the county officials they learned that, as the difficulty had occurred in Tennessee, no warrant could be issued for his arrest in Kentucky. They alleged that they were advised that a. private citizen had the right to make -the arrest.

On the morning following, which was Sunday, they left Albany for their home, and when they had arrived within about a quarter of a mile of their home they saw three parties standing in the field about a hundred yards from the road. One of these was Means. Appellant and his son were armed with shotguns. They left the road and entered the field, riding in the direction of Means. Appellant testifies that at that time he did not recognize Means, though he did recognize the men who were with him. As they approached Means moved away, from his two associates, off in the..direction of a. thicket or. strip .of woods, lying- some, se.venty-fivé -or-.a hundred years away. . There, .-was-a knoll -.between where he and.'his friends - we're standing -and this, woodland, and when he had:gone a-short, distance beyond-.theyknoll and was--being ■pursued -and:- called-..uponr to. stop>--by.:appellant~-'.ahd;,his v¿*v £*.' $*&.%• : u.'*!' SiSSf ?-í;Aí«>i>Í| . -pT" r >*' U i 1J! •*" ^p^t^o.^lio.ts w.ere fired .bj;,mm.c>.He pontiii^eQ. to, reIreat,pursueÁ by .^appellant and bis son. Eih¿lly.He.fook skelter behind a walnut tree, and as appellant.,and. his §oop approached,, eommandinghim to surrender, he fired at':tneifi and they' fire'á aUhiin.' '"‘S&véral áhots jiai-ssed befwe'dhWhbmU' >Th© hors© .which-appellant was" riding was shot down and killed. Appellant’s son-,' James-Williang was shot and killed, and Means was shot in the breast and one side of the face.

Appellant insists that his son, James William, shot Means '; but it is the theory of the Commonwealth that appellant shot him. The case was submitted to the jury undér appropriate instructions, and, as there was evidence which supported the theory of the Commonwealth, the verdict must he upheld, unless the errors complained of by counsel for appellant were prejudicial of his substantial rights-.

Complaint is made of the self-defense instruction because the court qualified it by the addition of the clause in which the jury is told that, if the appellant and his son, James William, by their own conduct in assaulting Means with deadly weapons, brought on the difficulty, they-were not entitled to the plea of self-defense-. This qualification was undoubtedly correct. There is evidence to the -effect that, upon seeing Means, appellant and his son, with an oath, shouted, “Let’s go gét him,’-’ and immediately started in pursuit of Means with their guns presented. Means at that time was fleeing They continued the pursuit and, according to some of the evidence, fired the first shot. While the weight of the evidence is to the effect that Means fired the first shot, still it was proper that both theories should he presented to the jury under áppropriate instructions. It is difficult to say who fired the first shot. But certain it is that Means tried to escape, and, seeing that he could not, took refuge behind the tree, while appellant and his son continued in their efforts to capture him, ór rather to kill him, for each was firing at him, and in the fusillade he was terribly wounded. The instruction was proper and in nowise prejudicial to appellant.

The serious complaint made by appellant’s counsel is that, in his closing argument to the jury, the Commonwealth’s attorney -transgressed all bounds of propriety ’and made such an inflammatory speech as was calculated to excite.the prejudice of the jury against appellant and Thereby induce it- to,-'bring in, the verdict which4it did. Particular objection is made "to that "part* of the'speech in which reference is made-to the-fact that appellant was engaged in the liquor traffic on the border between Kentucky and Tennessee, and that James Means'was likewise engaged in this' business; that they were from a. moral .Standpoint^ on a parity; ,the evidence .shows, that they were * engaged .in the liquor business ; the one. as a distiller. and tlie other , as-a vendor of liquor,, and while, the statements of the Commonwealth were perhaps somewhat overdrawn, still it is apparent, that appellant .was not prejudiced thereby. No definite rule can.be laid down for the guidance and direction of a Commonwealth’s attorney or other lawyer in the presentation of his case to the jury, further than that he must deal fairly with the evidence and the application of the law, as given by the court, to the evidence. ..A. broad latitude, is necessarily allowed him, and it is only when it is made clearly to appear that he has gone outside of,, the record for his facts, .and,, sought by this method to, take an undue and unfair advantage of the accused, that the court is justified in interfering. The evidence, shows that appellant had armed himself in the way and manner in which he was described by the Commonwealth’s attorney, and had gone out to hunt for James Means. The attorney for the Commonwealth likened him unto k wild beast in search of prey. This picture may have been somewhat overdrawn and the illustration not altogether apt, but it furnishes no more ground for reversible error than if the attorney representing appellant had spoken of his demeanor and conduct on the occasion in question as being lamblike and peaceable and his manner as mild as a May morning. Certainly the Commonwealth could not object that appellants’ counsel had thus pictured him to the jury.

TJpon a careful examination of the record we are satisfied that appellant had a fair trial of his ease. The punishment meted out to him by the jury was justified under the • facts proven, and the judgment is affirmed.  