
    Case 111. — PROSECUTION AGAINST GREEN, WATKINS & OTHERS FOR MURDER. —
    Nov. 23.
    Watkins v. Commonwealth.
    Appeal from Breathitt Circuit Court.
    Robert Riddle, Circuit Judge.
    Defendant convicted and appeals.
    Reversed.
    1. Criminal Law — Appeal—Transfer of Case — Filing of Transcript —Delay—Time of Objecting — Where a motion to dismiss an appeal from- a conviction of a felony on the ground that the transcript was not lodged with the clerk of the Court of Appeals within 60 days after judgment, as required by Cr. Code Prac., sec. 336, sub-sec. 3. is not made until after the ease is submitted for argument the irregularity is waived.
    2. Homicide — Aiders and Abettors — Action in Concert — Feuds— Defendant, being at the home of his relatives, learned that another party with whom they were at enmity was assembled at a neighbor's house looking for a fight. One of defendant’s relatives went to the neighbor and agreed that defendant and his party (consisting of four, one of whom was unarmed) should go home by an unusual route so as to avoid going by the neighbor’s and bringing on a conflict. The other party (consisting of seven), having violated this agreement, met defendant’s party on the unaccustomed route, and, in a fight which immediately followed, one of such seven was killed. Held, that it was immaterial whether defendant or one of his companions fired the fatal shot, since what would justify one would justify all, and each Was an aider and abettor of the others, if the killing was unjustifiable.
    3. Same — Self-Defense—Apparent Danger — Defendant was entitled to an acquittal if there was reasonable ground to apprehend danger necessitating the shooting as well as if there was actually such danger.
    4. Same — Instructions—Conspiracy—Such a state of facts did not warrant an instruction on conspiracy.
    5. Same — Self-Defense—If the killing was not necessary and did not reasonably appear necessary to protect defendant or mem- " bers of his party from death or great bodily harm, defendant was guilty.
    6. Same — Murder or Voluntary Homicide — If the killing by defendant, or his aiding or abetting of the killing by another, was done without malice, unlawfully and willfully in a sudden, affray, or in sudden heatiof passion upon provocation reasonably calculated to excite defendant’s passion beyond his power of control, it was voluntary manslaughter; if with malice, it was murder.
    7. Same — Self-Defense—If defendant or any of his party commenced the fight.by first shooting or first making demonstrations to shoot, or if both parties were determined on a conflict and (fought by mutual consent, the killing was not excusable on the ground of self-defense.
    8. Same — Reasonable Doubt as to Degree — Where one accused of homicide is guilty, but there is a reasonable doubt as to whether he is guilty of murder or voluntary manslaughter, he should be convicted of the lesser offense only.
    9. Criminal Law — Reasonable Doubt — One accused of murder is presumed to be innocent, and this íoresumption entitles him to acquittal unless his guilt has been proved beyond a reasonable doubt.
    N. B. HAYS and C. H. MORRIS for appellee.
    (No brief for appellee.)
    GOURDE Y & RED WINE and COPE & SON for appellant.
    POINTS AND AUTHORITIES.
    1. The appellant insists that the instructions given by the court are erroneous and prejudicial to his rights and misleading upon the trial of the cause. (Maiden v. Commonwealth, 82 Ky., 133; Riley v. Commonwealth, 94 Ky., '266; Martin v. Commonwealth, 93 Ky., 192; McDowell v. Commonwealth, 4 Ky. R., 353; Allen v. Commonwealth, 9 Ky. Law Rep., 785; Radford v. Commonwealth, 9 Ky. Law Rep., 379; Oakley v. Commonwealth, 10 Ky. Law Rep., 585; Hamlin v. Commonwealth, 11 Ky. Law Rep., 348; .Smith v. Commonwealth, IS Ky. Law Rep., 31; Commonwealth v. Barnes, 13 Ky. Law Rep., 163; Martin v. Commonwealth, 14 Ky. Law Rep., 95; Nantz v. Commonwealth, 14 Ky. Law Rep., 593; Hammerly v. Commonwealth, 15 Ky. Law Rep., 286).
    2. The declaration or acts of a co-defendant are not competent until a conspiracy has been established, nor can instruction be given on conspiracy, unless a conspiracy has been (established. (Stovall v. Commonwealth, 23 Ky. Law Rep., 103; Strange v. Commonwealth, 23 Kjr. Law Rep., 1234; Hines v. Commonwealth, 23 Ky. Law Rep., 119).
    3. Instruction No. 3, which authorized the jury to find the defendant guilty if he aided, abetted, advised or encouraged the killing was erroneous in that it failed <to require the jury to believe that said “killing was induced thereby;” these words should have been added. (Hall v. .Commonwealth, 93 S. W., 904).
    4. Under the state of facts the court should have told the jury that if defendants or any of them were in immediate danger of death or great bodily harm at the hands of deceased “or those acting with him,” they should find the defendant not guilty.
    5. Where it is a question under the evidence which fired the first shot, deceased or defendant, then the ordinary self-defense instruction is prefer and no modification should be added. (Kendall v. Commonwealth, 14 Ky. Law Rep., 15, 19 S. W., 173; Commonwealth v. Bullock, 24 Ky. Law Rep., 79, 67 S. W., 992; Carroll v. State, 24 Ala., 36; State v. Patterson, 12 Am. Rep., 210; Rafferty v. People, 18 Am. Rep., 601; Nobs v. State, 62 Am. Dec., 711; Neely v. Commonwealth, 93 S. W., 904; Calhoun v. Commonwealth, 23 'Ky. Law Rep., 1188; Scott v. Commonwealth, 16 Ky. Law Rep., 702).
   Opinion by

Judge Settle

Reversing.

The appellant, Green Watkins, his brother, Clay Watkins, and eonsin, Elliott Collins, were jointly indicted in the Breathitt circuit court for the murder of Lee Manns. Appellant was accorded a separate trial, and the jury by the verdict returned found him guilty of voluntary man-slaughter, and fixed his punishment at confinement in the penitentiary 10 years. By this appeal he seeks the reversal of the judgment of conviction.

We are asked by Counsel for the Commonwealth to dismiss the appeal upon the ground that the transcript of the record was not lodged in the office of the clerk of this court within 60 days after the judgment, as required by subsec. 3, § 336, Cr. Code Prac. We deem it unnecessary to decide whether or not the transcript was filed within the time fixed by the Code, as the motion to dismiss the appeal was made after the case was submitted for argument. In passing upon a similar motion based upon the same ground, this court, in Mackey v. Com’lth, 80 Ky. 345, 4 Ky. Law Rep. 179 held that in a felony case not only are there no conditions annexed to the granting of ,an appeal, but that the defendant is entitled to it as a matter of right, and if he fail to lodge in the office of the clerk of this court the transcript within 60 days, the court may, upon his motion made before the expiration of the 60 days, extend the time of filing it. After thus holding, the opinion proceeds to sajT: “Hence we do not regard the question presented on the motion under consideration as involving the jurisdiction of this court. It is purely a question of practice, and we are constrained to hold that, after the cause is submitted for argument or hearing on the merits, all preliminary questions involving irregularities, which do not reach the substance of the controversy, or affect the jurisdiction of the court, should be treated as waived. The motion to dismiss is therefore overruled.”

The appellant’s principal ground for a reversal is that the trial judge erred in instructing the jury. A correct understanding of the salient facts leading to, and connected with the homicide will throw much light upon the consideration of this contention. Appellant and the deceased were near neighbors, and attendants at the same school, each being about 16 years of age. Bad blood had existed between them for some time, and on the day of the homicide appellant, iafter dismissal of the school, went to the residence of his mother on Quicksand creek; here he found a younger brother, Olay Watkins, and their kinsman, Elliott Collins, who is about appellant’s age. Sam Watkins, an older brother, soon thereafter arrived at his mother’s, and informed appellant and his companions that deceased, his younger brother, Ashland Morris, George Howard, Gitteau Howard, Branch Howard, Bob Howard, and Alfred Miller were at the home of Riley Howard, an uncle of the Howard boys, armed !and awaiting an opportunity to attack them. As a means of avoiding a meeting of the parties appellant and his two companions agreed to go to the house of Sam Watkins and spend the night, and instead of going the usual road -by the house of Riley Howard, that they would cross the creek at‘their mother’s and make their way to Sam Watkins’ from the opposite side of the creek. Before starting, however, they further agreed that Sam Watkins might go to Riley Howard’s, inform him of the plan to prevent a meeting between the belligerent factions, and arrange for the latter to keep the party at his house from leaving until appellant, his brother Clay, and Collins reached Sam Watkins’ house. Sam Watkins went at once to see Riley Howard, informed him of the arrangement, and obtained his consent to carry it out. Howard communicated the matter to his nephews and the Manns, and advised Sam Watkins that they would accept 'the arrangement. The latter then returned to his mother’s, and informed his brothers and Collins of what Riley Howard had said, and they immediately started with Sam on the way to his home, crossing the creek as agreed, for that purpose. When they left their mother’s, appellant was armed with a pistol; Clay Watkins and Collins.had each a gun; Sam Watkins was unarmed. As the party were pursuing their way down the creek, the Manns, Howards and Miller, also armed with pistols and guns, in violation of the agreement mentioned, left Riley Howard’s and crossed the creek to the side on which the Watkins party had gone; very soon they met bn the banks of the creek, and then occurred the rencounter in which Lee Manns lost his life. Relatively, the belligeranfs stood three to seven, for it does not satisfactorily appear that Sam Watkins took any part in the shooting which followed. The proof was conflicting as to how the shooting began. The Manns party testified on the trial that it followed an insulting remark addressed to them by appellant, and that he fired the first shot. Upon the other hand, this was denied by appellant, his brothers, and Collins, their testimony being to the effect that the insulting remark was made by deceased, and that he and hisparty began the shooting. At any rate, the shooting immediately became general, and was engaged in by all who were armed, though but the one person was killed. The fight ended in the flight of the Watkinses, the weaker party. While, as stated, the evidence was conflicting as to the manner in which the fighting began, there were several circumstances that apparently corroborated Watkins’ version of the matter. As they readily consented to leave the neighborhood of their foes and go to their brother’s to avoid meeting with them, and left the usual road to travel an unusual route on the opposite side of the creek, to further prevent such a meeting, it is hardly reasonable that they would have been willing to force a fight, unexpectedly meeting the enemies from whom they were attempting to escape. Furthermore, it also appears unreasonable that in such a meeting they should have hastened to 'attack a party who outnumbered them more than two to one, and were better armed, and nearly all of whom were adults of full size and mature physical strength. However, these circumstances, with all other evidence in the case, were doubtless presented to the jury, whether given any weight by them or not, and it' is not our right to invade their province by .declaring what verdict they should or should not have returned upon the facts before them.

There was also a contrariety of evidence as to the identity >of the slayer of Lee Manns. That he was shot by appellant, his brother, or Collins, is evident, but it is not clear who did it. This, however, is not material, as they were acting in concert, and all of them did some shooting. If appellant and his associates were at the time properly acting in their self defense, what would have excused one would have excused all of them. On the other hand, if the killing of the deceased was not justifiable, those who shot at him or his party without hitting him are, as aiders and abettors of the person by whom the killing was done, equally responsible with him. In view of the facts appearing in the record, we think the instructions given by the court did not correctly present the law of the case. The instructions are too numerous and lengthy to copy in the opinion. It is sufficient to say that they all contain errors, and one in particular, that makes them radically wrong. That is, they limit appellant’s right to defend himself or his associates to only suoh danger, real or apparent, to life or person as he or they were in at the hand of deceased; whereas, he was equally entitled to have the jury instructed as to the grounds upon which he could defend himself and his associates against such danger, real or apparent, as he had reasonable grounds to apprehend to himself or them at the hands of those acting with deceased.

Instruction No. 6, as to the question of conspiracy, should have not been given. There was no evidence of a conspiracy on the part of appellant and his associates upon which to base such an instruction. The instruction was therefore misleading, .and necessarily prejudicial to appellant. In lieu of the instruction contained in the record, the court, upon a retrial of the case, should give the following:

“(1) If the jury believe from the evidence beyond a reasonable doubt that the defendant, Green Watkins, in Breathitt county, Ky., and before the finding of the indictment, did kill Lee Manns by shooting him with a pistol, loaded with leaden ball, or other hard substance, when it was not necessary, and it did not reasonably appear to defendant to be necessary to protect himself, Clay Watkins, Sam Watkins, or Elliott Collins from danger, real or apparent, or death or great bodily harm at the hands of Lee Manns, or those, if any, acting in concert with and aiding him, they should find defendant guilty — that is, guilty of murder — if they believe from the evidence beyond a reasonable doubt that said killing was done unlawfully, willfully, feloniously, and with malice aforethought; but guilty of voluntary manslaughter if the jury believe from the evidence such killing was without previous malice, and should further believe from the evidence beyond a reasonable doubt that it was unlawfully, willfully and feloniously done in a sudden affray, nr in a sudden heat and passion, upon provocation which was reasonably ■ calculated to excite defendant’s passion beyond the power of control. If the jury find the defendant guilty of "murder, they will fix his punisbement at death or confinement in the penitentiary for life. But if they find him guilty of voluntary manslaughter, they should fix his punishment at confinement in the penitentiary not less than two .nor more than twenty-one years, in their discretion,
“(2) If the jury believe from the evidence beyond a reasonable doubt that Lee Manns was unlawfully, willfully, feloniously, and with malice aforethought, or in a sudden affray, or sudden heat and passion, shot and killed by Clay Watkins, Sam Watkins, or Elliott Collins, when it was not neccessary, and did not reasonably appear to the one doing the killing to be necessary, to protect himself, Green Watkins, or the other persons associated with him at the time, from danger, real or apparent, of death or great bodily harm at the hands of Lee Manns, or those acting in concert with him, and shall further believe from the evidence beyond a reasonable doubt that the defendant, Green Watkins, was present at the time, and did unlawfully, willfully, and feloniously aid, abet,- advise, counsel, or encourage the said Clay Watkins, Sam Watkins, or Elliott Collins, or the one of them who did said killing, they should find the defendant, Green Watkins, guilty — that is, guilty of murder — if they believe from the evidence beyond a reasonable doubt that said aiding, abetting, advising, consulting, or encouraging, if he did same, was done with malice aforethought, but guilty of voluntary manslaughter if they believe from the evidence such aiding, abetting, advising, consulting or encouraging, if any was done, without previous malice, and shall further believe from the evidence beyond a reasonable doubt that it was done in a suden affray, or in sudden heat and passion, upon provocation which was reasonably calculated to excite his passion beyond the power of control.
“(3) If the jury believe from the evidence beyond a reasonable doubt that the defendant, Green Watkins, has been proved guilty of murder or voluntary manslaughter, but have from the evidence a reasonable doubt as to which of said crimes, if either, he is guilty of, they should, in that event, find him guilty of voluntary manslaughter.
“(4) Although the jury may believe from the evidence, beyond a reasonable doubt, that the defendant, Green Watkins, shot and killed Lee Manns, if they believe from the evidence, that, when he did so, he had reasonable grounds to believe, that deceased, or others of his party acting in concert with him, were then about to inflict upon defendant, Clay Watkins, Sam Watkins, Elliott Collins, or any of them, death or great bodily harm, or it reasonably appeared to him that such was the case, and it further reasonably appeared to him that tbe only reasonably safe means of protecting himself, or them, against 'such danger, real or apparent, was to shoot the said Lee Manns, or others of his party acting in concert with him, and the shooting and killing of the former was done under these circumstances, the same was excusable on the ground of apparent necessity in the defense of himself or associates named, and the jury should acquit the defendant.
“(5) But if the jury believe from the evidence, beyond a reasonable doubt, that the defendant, Green Watkins, Clay Watkins, Sam Watkins, or Elliott Collins, or any of them, when they met Lee Manns and his party commenced the difficulty with them by first shooting’ at them, or any of them, or making the first demonstration to shoot at any of them, or that defendant, Clay Watkins, Sam Watkins, and Elliott Collins met the parties named, and both parties were armed and determined on a conflict, and did engage •in such conflict by mutual consent then in either event the defendant, Green Watkins, cannot rely on the right of self-defense, or that he acted in defense of his associates named.
“(6) The jury are further instructed that the defendant is presumed to be innocent, and this presumption of his innocence entitles him to an acquittal at their hands, unless his guilt has been proved from the evidence beyond a reasonable doubt.”

There are other errors complained of, but as there must be a retrial of the case, we assume that they will not be repeated.

For the reasons indicated, the judgment is reversed, and cause remanded for a new trial consistent with the opinion.  