error instruction in Kentucky

2011Thus, we address the error under the standard set forth in Sanders, 801 S.W.2d at 668 .

1999However, because the death penalty was imposed in this case, we review this error under the standard set forth in Sanders v. Commonwealth, Ky., 801 S.W.2d 665 (1990), cert. denied, 502 U.S. 831 , 112 S.Ct. 107 , 116 L.Ed.2d 76 (1991): Assuming that the so-called error occurred, we begin by inquiring: (1) whether there is a reasonable justification or explanation for defense counsel’s failure to object, e.g., whether the failure might have been a legitimate trial tactic; and (2) if there is no reasonable explanation, whether the unpreserved error was prejudicial, i.e., whether the circumstances

1946Pope-Cawood Lumber & Supply Co. v. Cleet, 236 Ky. 366 , 33 S. W. 2d 360 ; Wathen v. Mackey, 300 Ky. 115 , 187 S. W. 2d 1000 , and the many authorities cited in the latter opinion.

1946Pope-Cawood Lumber & Supply Co. v. Cleet, 236 Ky. 366 , 33 S. W. 2d 360 ; Wathen v. Mackey, 300 Ky. 115 , 187 S. W. 2d 1000 , and the many authorities cited in the latter opinion.

1932Hall v. Commonwealth, 162 Ky. 439 , 172 S. W. 667 ; O’Hara v. Commonwealth, 164 Ky. 405 , 175 S. W. 637 .” The court will therefore, upon another trial of this action, give the correct instruction upon the law of self- *584 defense as set out aiid given in Buttery v. Commonwealth, supra. Because of this error in the instruction, the judgment should be, and is, reversed, with directions to grant the appellant a new trial, and for further proceedings' consistent herewith.

1932Hall v. Commonwealth, 162 Ky. 439 , 172 S. W. 667 ; O’Hara v. Commonwealth, 164 Ky. 405 , 175 S. W. 637 .” The court will therefore, upon another trial of this action, give the correct instruction upon the law of self- *584 defense as set out aiid given in Buttery v. Commonwealth, supra. Because of this error in the instruction, the judgment should be, and is, reversed, with directions to grant the appellant a new trial, and for further proceedings' consistent herewith.

2011“Recognizing the requirements of KRS 532.075(2), we [have] noted that such do not require ‘total abandonment of the rules of preservation.’ ” West, 780 S.W.2d at 603 ; See also Murray v. Carrier, 477 U.S. 478 , 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986).

1999However, because the death penalty was imposed in this case, we review this error under the standard set forth in Sanders v. Commonwealth, Ky., 801 S.W.2d 665 (1990), cert. denied, 502 U.S. 831 , 112 S.Ct. 107 , 116 L.Ed.2d 76 (1991): Assuming that the so-called error occurred, we begin by inquiring: (1) whether there is a reasonable justification or explanation for defense counsel’s failure to object, e.g., whether the failure might have been a legitimate trial tactic; and (2) if there is no reasonable explanation, whether the unpreserved error was prejudicial, i.e., whether the circumstances

1999However, because the death penalty was imposed in this case, we review this error under the standard set forth in Sanders v. Commonwealth, Ky., 801 S.W.2d 665 (1990), cert. denied, 502 U.S. 831 , 112 S.Ct. 107 , 116 L.Ed.2d 76 (1991): Assuming that the so-called error occurred, we begin by inquiring: (1) whether there is a reasonable justification or explanation for defense counsel’s failure to object, e.g., whether the failure might have been a legitimate trial tactic; and (2) if there is no reasonable explanation, whether the unpreserved error was prejudicial, i.e., whether the circumstances

1999However, because the death penalty was imposed in this case, we review this error under the standard set forth in Sanders v. Commonwealth, Ky., 801 S.W.2d 665 (1990), cert. denied, 502 U.S. 831 , 112 S.Ct. 107 , 116 L.Ed.2d 76 (1991): Assuming that the so-called error occurred, we begin by inquiring: (1) whether there is a reasonable justification or explanation for defense counsel’s failure to object, e.g., whether the failure might have been a legitimate trial tactic; and (2) if there is no reasonable explanation, whether the unpreserved error was prejudicial, i.e., whether the circumstances

1965Later in King v. Commonwealth, 224 Ky. 822 , 7 S.W.2d 228 , an error in an instruction defining involuntary manslaughter was held not prejudicial where the defendant was convicted of murder.

1965Later in King v. Commonwealth, 224 Ky. 822 , 7 S.W.2d 228 , an error in an instruction defining involuntary manslaughter was held not prejudicial where the defendant was convicted of murder.

1951It has been often ruled that instructions should substantially follow “the language of the indictment.” Whitaker v. Commonwealth, 188 Ky. 95 , 221 S.W. 215 , 10 A.L.R. 145 .

1951It has been often ruled that instructions should substantially follow “the language of the indictment.” Whitaker v. Commonwealth, 188 Ky. 95 , 221 S.W. 215 , 10 A.L.R. 145 .

1950Ayers v. Commonwealth, 195 Ky. 343 , 242 S. W. 624 ; Wireman v. Commonwealth, 290 Ky. 704 , 162 S.W.2d 557 .

1950Ayers v. Commonwealth, 195 Ky. 343 , 242 S. W. 624 ; Wireman v. Commonwealth, 290 Ky. 704 , 162 S.W.2d 557 .

1950Ayers v. Commonwealth, 195 Ky. 343 , 242 S. W. 624 ; Wireman v. Commonwealth, 290 Ky. 704 , 162 S.W.2d 557 .

1950Ayers v. Commonwealth, 195 Ky. 343 , 242 S. W. 624 ; Wireman v. Commonwealth, 290 Ky. 704 , 162 S.W.2d 557 .

1946Pope-Cawood Lumber & Supply Co. v. Cleet, 236 Ky. 366 , 33 S. W. 2d 360 ; Wathen v. Mackey, 300 Ky. 115 , 187 S. W. 2d 1000 , and the many authorities cited in the latter opinion.

1946Pope-Cawood Lumber & Supply Co. v. Cleet, 236 Ky. 366 , 33 S. W. 2d 360 ; Wathen v. Mackey, 300 Ky. 115 , 187 S. W. 2d 1000 , and the many authorities cited in the latter opinion.

1944We do not hold that *329 it was reversible error for the court to submit this fact to the jury as plaintiff was not prejudiced thereby, but it is better form to instruct that plaintiff had shown legal title to the lot and the jury should find for him unless they believe from the evidence “that defendant for 15 years or more before the institution of this action had been in the actual, adverse, open, notorious, visible, hostile and continuous, possession of the lot in controversy, claiming same as his own to a well-marked or defined boundary, in which event they will find for defendant. ’ ’ It

1944We do not hold that *329 it was reversible error for the court to submit this fact to the jury as plaintiff was not prejudiced thereby, but it is better form to instruct that plaintiff had shown legal title to the lot and the jury should find for him unless they believe from the evidence “that defendant for 15 years or more before the institution of this action had been in the actual, adverse, open, notorious, visible, hostile and continuous, possession of the lot in controversy, claiming same as his own to a well-marked or defined boundary, in which event they will find for defendant. ’ ’ It

1944We do not hold that *329 it was reversible error for the court to submit this fact to the jury as plaintiff was not prejudiced thereby, but it is better form to instruct that plaintiff had shown legal title to the lot and the jury should find for him unless they believe from the evidence “that defendant for 15 years or more before the institution of this action had been in the actual, adverse, open, notorious, visible, hostile and continuous, possession of the lot in controversy, claiming same as his own to a well-marked or defined boundary, in which event they will find for defendant. ’ ’ It

1944We do not hold that *329 it was reversible error for the court to submit this fact to the jury as plaintiff was not prejudiced thereby, but it is better form to instruct that plaintiff had shown legal title to the lot and the jury should find for him unless they believe from the evidence “that defendant for 15 years or more before the institution of this action had been in the actual, adverse, open, notorious, visible, hostile and continuous, possession of the lot in controversy, claiming same as his own to a well-marked or defined boundary, in which event they will find for defendant. ’ ’ It

1944We do not hold that *329 it was reversible error for the court to submit this fact to the jury as plaintiff was not prejudiced thereby, but it is better form to instruct that plaintiff had shown legal title to the lot and the jury should find for him unless they believe from the evidence “that defendant for 15 years or more before the institution of this action had been in the actual, adverse, open, notorious, visible, hostile and continuous, possession of the lot in controversy, claiming same as his own to a well-marked or defined boundary, in which event they will find for defendant. ’ ’ It

1944We do not hold that *329 it was reversible error for the court to submit this fact to the jury as plaintiff was not prejudiced thereby, but it is better form to instruct that plaintiff had shown legal title to the lot and the jury should find for him unless they believe from the evidence “that defendant for 15 years or more before the institution of this action had been in the actual, adverse, open, notorious, visible, hostile and continuous, possession of the lot in controversy, claiming same as his own to a well-marked or defined boundary, in which event they will find for defendant. ’ ’ It

1944It was said in the Ahart opinion “there must have been such open and notorious acts of physical possession as would put the owner upon notice of the assertion of the hostile claim.” Practically the same language was used in Miller v. Cumberland Petroleum Co., 269 Ky. 525 , 108 S. W. 514 .

1944It was said in the Ahart opinion “there must have been such open and notorious acts of physical possession as would put the owner upon notice of the assertion of the hostile claim.” Practically the same language was used in Miller v. Cumberland Petroleum Co., 269 Ky. 525 , 108 S. W. 514 .

1942Defendant argues that instruction A is in conformity with one approved in Helton v. Prater’s Adm’r, 272 Ky. 574 , 114 S. W. (2d) 1120 , and that it was correct as far as it went and had plaintiffs desired that it be extended, it was their duty to offer such extension, citing Helge v. Babey, 228 Ky. 197 , 15 S. W. (2d) 757 .

1942Defendant argues that instruction A is in conformity with one approved in Helton v. Prater’s Adm’r, 272 Ky. 574 , 114 S. W. (2d) 1120 , and that it was correct as far as it went and had plaintiffs desired that it be extended, it was their duty to offer such extension, citing Helge v. Babey, 228 Ky. 197 , 15 S. W. (2d) 757 .

1942Defendant argues that instruction A is in conformity with one approved in Helton v. Prater’s Adm’r, 272 Ky. 574 , 114 S. W. (2d) 1120 , and that it was correct as far as it went and had plaintiffs desired that it be extended, it was their duty to offer such extension, citing Helge v. Babey, 228 Ky. 197 , 15 S. W. (2d) 757 .

1942In Consolidated Coach Corp. v. Bryant, 260 Ky. 452 , 86 S. W. (2d) 88 , where the facts were very similar to the facts in the instant case, a proper instruction was outlined.

1942In Consolidated Coach Corp. v. Bryant, 260 Ky. 452 , 86 S. W. (2d) 88 , where the facts were very similar to the facts in the instant case, a proper instruction was outlined.

1938Counsel for appellee especially relies upon the case of Owen Motor Freight Lines et al. v. Russell’s Adm’r, Owen v. Sawyers’ Adm’r, 260 Ky. 795 , 86 S. W. (2d) 708 , and as a foundation for their argument they quote from that opinion the following (page 711): “Where one vehicle is trailing another, the trailing-motorist must govern his speed to keep back a reasonably safe distance so as to provide for the contingency of the front vehicle suddenly stopping or decreasing his speed, so he can stop or decrease his speed to avoid a collision, or can turn out safely to pass the vehicle in front.” Th

1938Counsel for appellee especially relies upon the case of Owen Motor Freight Lines et al. v. Russell’s Adm’r, Owen v. Sawyers’ Adm’r, 260 Ky. 795 , 86 S. W. (2d) 708 , and as a foundation for their argument they quote from that opinion the following (page 711): “Where one vehicle is trailing another, the trailing-motorist must govern his speed to keep back a reasonably safe distance so as to provide for the contingency of the front vehicle suddenly stopping or decreasing his speed, so he can stop or decrease his speed to avoid a collision, or can turn out safely to pass the vehicle in front.” Th

1935Beach v. Commonwealth, 240 Ky. 763 , 43 S. W. (2d) 6 ; Collingsworth v. Commonwealth, 254 Ky. 472 , 71 S. W. (2d) 1030 .

1935Beach v. Commonwealth, 240 Ky. 763 , 43 S. W. (2d) 6 ; Collingsworth v. Commonwealth, 254 Ky. 472 , 71 S. W. (2d) 1030 .

1935Beach v. Commonwealth, 240 Ky. 763 , 43 S. W. (2d) 6 ; Collingsworth v. Commonwealth, 254 Ky. 472 , 71 S. W. (2d) 1030 .

1935Beach v. Commonwealth, 240 Ky. 763 , 43 S. W. (2d) 6 ; Collingsworth v. Commonwealth, 254 Ky. 472 , 71 S. W. (2d) 1030 .

1935J. 447; Collier v. Commonwealth, 160 Ky. 338 , 169 S. W. 740 ), it cannot be and is not always so.

1935J. 447; Collier v. Commonwealth, 160 Ky. 338 , 169 S. W. 740 ), it cannot be and is not always so.

1932Pope-Cawood Lumber & Supply Co. v. Cleet, 236 Ky. 366 , 33 S. W. (2d) 360 ; Turner Elkhorn Coal Co. v. Smith, 239 Ky. 428 , 39 S. W. (2d) 649 .

1932Pope-Cawood Lumber & Supply Co. v. Cleet, 236 Ky. 366 , 33 S. W. (2d) 360 ; Turner Elkhorn Coal Co. v. Smith, 239 Ky. 428 , 39 S. W. (2d) 649 .

1932Hall v. Commonwealth, 162 Ky. 439 , 172 S. W. 667 ; O’Hara v. Commonwealth, 164 Ky. 405 , 175 S. W. 637 .” The court will therefore, upon another trial of this action, give the correct instruction upon the law of self- *584 defense as set out aiid given in Buttery v. Commonwealth, supra. Because of this error in the instruction, the judgment should be, and is, reversed, with directions to grant the appellant a new trial, and for further proceedings' consistent herewith.

1932Hall v. Commonwealth, 162 Ky. 439 , 172 S. W. 667 ; O’Hara v. Commonwealth, 164 Ky. 405 , 175 S. W. 637 .” The court will therefore, upon another trial of this action, give the correct instruction upon the law of self- *584 defense as set out aiid given in Buttery v. Commonwealth, supra. Because of this error in the instruction, the judgment should be, and is, reversed, with directions to grant the appellant a new trial, and for further proceedings' consistent herewith.