criticism instruction in Kentucky

1947Metts’ Adm’r v. Louisville Gas & Electric Company, 222 Ky. 551 , 1 S. W. 2d 985 .

1947Metts’ Adm’r v. Louisville Gas & Electric Company, 222 Ky. 551 , 1 S. W. 2d 985 .

1945The criticism of such an instruction in the recent case of Benge v. Commonwealth, 298 Ky. 562 , 183 S. W. 2d 631 , seems not to be in keeping with the general weight of authority in this jurisdiction. • Judgment reversed, with directions to set it aside and for proceedings consistent with this opinion.

1945The criticism of such an instruction in the recent case of Benge v. Commonwealth, 298 Ky. 562 , 183 S. W. 2d 631 , seems not to be in keeping with the general weight of authority in this jurisdiction. • Judgment reversed, with directions to set it aside and for proceedings consistent with this opinion.

1938As was said in Louisville & Nashville Railroad Company v. Banks’ Adm’r, 195 Ky. 804 , 243 S. W. 1018 : “ ‘The determining factor in a case of this kind is not habitual use of the track by the public.

1938As was said in Louisville & Nashville Railroad Company v. Banks’ Adm’r, 195 Ky. 804 , 243 S. W. 1018 : “ ‘The determining factor in a case of this kind is not habitual use of the track by the public.

1938So was it expressly held in the case of Louisville & Nashville Railroad Company v. Hyde’s Adm’r, 221 Ky. 39 , 297 S. W. 814 , wherein, in answer to the criticism of the instruction there as here made, that it did not require the jury to believe as it should have, that the track was daily and habitually used by the public in large numbers, we said (page 816): “It will be observed that this instruction imposed a lookout duty if the use of the track at that place was habitually used without reference to the extent of such use or the number of persons that habitually used it at that place.

1938So was it expressly held in the case of Louisville & Nashville Railroad Company v. Hyde’s Adm’r, 221 Ky. 39 , 297 S. W. 814 , wherein, in answer to the criticism of the instruction there as here made, that it did not require the jury to believe as it should have, that the track was daily and habitually used by the public in large numbers, we said (page 816): “It will be observed that this instruction imposed a lookout duty if the use of the track at that place was habitually used without reference to the extent of such use or the number of persons that habitually used it at that place.

1937The same complaint was expressly overruled in the Adams Case, supra [Adams v. Commonwealth, 212 Ky. 334 , 279 S. W. 332 ], with citation of other prior ones to the same effect,’’’ and it was there held that the homicide instruction was not erroneous because of failing to define the words “feloniously” and “maliciously.” See, also, Perkins v. Commonwealth, 218 Ky. 802 , 292 S. W. 498 .

1937The same complaint was expressly overruled in the Adams Case, supra [Adams v. Commonwealth, 212 Ky. 334 , 279 S. W. 332 ], with citation of other prior ones to the same effect,’’’ and it was there held that the homicide instruction was not erroneous because of failing to define the words “feloniously” and “maliciously.” See, also, Perkins v. Commonwealth, 218 Ky. 802 , 292 S. W. 498 .

1937In answer to such criticism, in the late case of Shelton v. Commonwealth, 255 Ky. 745 , 75 S. W. (2d) 494, 500 , it was said, “The criticism of instruction No. 3 is that it did not define the words ‘feloniously’ and ‘maliciously’; but we have often held that such defining instructions were unnecessary.

1937In answer to such criticism, in the late case of Shelton v. Commonwealth, 255 Ky. 745 , 75 S. W. (2d) 494, 500 , it was said, “The criticism of instruction No. 3 is that it did not define the words ‘feloniously’ and ‘maliciously’; but we have often held that such defining instructions were unnecessary.

1937The same complaint was expressly overruled in the Adams Case, supra [Adams v. Commonwealth, 212 Ky. 334 , 279 S. W. 332 ], with citation of other prior ones to the same effect,’’’ and it was there held that the homicide instruction was not erroneous because of failing to define the words “feloniously” and “maliciously.” See, also, Perkins v. Commonwealth, 218 Ky. 802 , 292 S. W. 498 .

1937The same complaint was expressly overruled in the Adams Case, supra [Adams v. Commonwealth, 212 Ky. 334 , 279 S. W. 332 ], with citation of other prior ones to the same effect,’’’ and it was there held that the homicide instruction was not erroneous because of failing to define the words “feloniously” and “maliciously.” See, also, Perkins v. Commonwealth, 218 Ky. 802 , 292 S. W. 498 .

1937That section had the effect, as we held in the case of Hopper v. Barren Fork Coal Company, 263 Ky. 446 , 92 S. W. (2d) 776 , to repeal a prior section of our statutes (2739g-51) prescribing a maximum speed of only 15 miles per hour at such places for the character of truck here involved.

1937That section had the effect, as we held in the case of Hopper v. Barren Fork Coal Company, 263 Ky. 446 , 92 S. W. (2d) 776 , to repeal a prior section of our statutes (2739g-51) prescribing a maximum speed of only 15 miles per hour at such places for the character of truck here involved.

1934The criticism of instruction No. 1 is that it possesses the same vice as did the corresponding one condemned in the case of Strange v. Commonwealth, 254 Ky. 57 , 70 S. W. (2d) 972, 974 , in that’the phrase “if you believe from the evidence beyond a reasonable doubt” was not carried throughout that instruction so as to apply to a conviction of voluntary manslaughter of which defendant was found guilty.

1934The criticism of instruction No. 1 is that it possesses the same vice as did the corresponding one condemned in the case of Strange v. Commonwealth, 254 Ky. 57 , 70 S. W. (2d) 972, 974 , in that’the phrase “if you believe from the evidence beyond a reasonable doubt” was not carried throughout that instruction so as to apply to a conviction of voluntary manslaughter of which defendant was found guilty.

1933Such advice was included in the instruction directed to be given in Smith’s Adm’x v. Middleton, 112 Ky. 588 , 66 S. W. 388 , 23 Ky. Law Rep. 2010 , 56 L. R.

1933Such advice was included in the instruction directed to be given in Smith’s Adm’x v. Middleton, 112 Ky. 588 , 66 S. W. 388 , 23 Ky. Law Rep. 2010 , 56 L. R.

1933Ground 3 is directed to a criticism of instruction 1 given by the court to the jury, and in support thereof learned counsel cite and rely upon the case of Standard Oil Company v. Thompson, 189 Ky. 830 , 226 S. W. 368, 369 .

1933Ground 3 is directed to a criticism of instruction 1 given by the court to the jury, and in support thereof learned counsel cite and rely upon the case of Standard Oil Company v. Thompson, 189 Ky. 830 , 226 S. W. 368, 369 .

1933That instruction, as given, says: “If upon the whole case the jury entertains a reasonable doubt from all the evidence of the defendant having been proven guilty, then you should find him not guilty.” As so framed the instruction has been uniformly approved in a long list of cases determined by this court, and in some of which we rejected tbe identical criticism made by counsel in this case, some of the latest of which are: Mink v. Commonwealth, 228 Ky. 674 , 15 S. W. (2d) 463 , and Brown v. Commonwealth, 198 Ky. 663 , 249 S. W. 777, 779 .

1933That instruction, as given, says: “If upon the whole case the jury entertains a reasonable doubt from all the evidence of the defendant having been proven guilty, then you should find him not guilty.” As so framed the instruction has been uniformly approved in a long list of cases determined by this court, and in some of which we rejected tbe identical criticism made by counsel in this case, some of the latest of which are: Mink v. Commonwealth, 228 Ky. 674 , 15 S. W. (2d) 463 , and Brown v. Commonwealth, 198 Ky. 663 , 249 S. W. 777, 779 .

1933That instruction, as given, says: “If upon the whole case the jury entertains a reasonable doubt from all the evidence of the defendant having been proven guilty, then you should find him not guilty.” As so framed the instruction has been uniformly approved in a long list of cases determined by this court, and in some of which we rejected tbe identical criticism made by counsel in this case, some of the latest of which are: Mink v. Commonwealth, 228 Ky. 674 , 15 S. W. (2d) 463 , and Brown v. Commonwealth, 198 Ky. 663 , 249 S. W. 777, 779 .

1933That instruction, as given, says: “If upon the whole case the jury entertains a reasonable doubt from all the evidence of the defendant having been proven guilty, then you should find him not guilty.” As so framed the instruction has been uniformly approved in a long list of cases determined by this court, and in some of which we rejected tbe identical criticism made by counsel in this case, some of the latest of which are: Mink v. Commonwealth, 228 Ky. 674 , 15 S. W. (2d) 463 , and Brown v. Commonwealth, 198 Ky. 663 , 249 S. W. 777, 779 .

1930It is said in brief that “the court told the jury as a matter of law that it was the duty of the company to furnish decedent a reasonably safe place in which to perform his labor.” Such was the fact in the case of Eagle Coal Co. v. Patrick, 161 Ky. 333 , 170 S. W. 960 , cited by appellant.

1930It is said in brief that “the court told the jury as a matter of law that it was the duty of the company to furnish decedent a reasonably safe place in which to perform his labor.” Such was the fact in the case of Eagle Coal Co. v. Patrick, 161 Ky. 333 , 170 S. W. 960 , cited by appellant.

1925In support of the other criticism of this instruction, counsel refers ns to the case of Melville v. Rollwage, 171 Ky. 607 , 188 S. W. 638 , which, he insists, holds that the duty to give signals at all street crossings in a city is absolute, even though a traffic officer may be in control of and directing the traffic at the crossing.

1925In support of the other criticism of this instruction, counsel refers ns to the case of Melville v. Rollwage, 171 Ky. 607 , 188 S. W. 638 , which, he insists, holds that the duty to give signals at all street crossings in a city is absolute, even though a traffic officer may be in control of and directing the traffic at the crossing.

1918Under such circumstances, if defendant desired a more specific instruction upon the question of present value it should have offered such an instruction,, and having- failed to do so cannot now complain.” In Cincinnati, New Orleans & Texas Pacific Railway Company v. Jones’ Admr., 177 Ky. 485 , we also said, in response to the criticism of an instruction upon the measure of damages upon the ground that it did not conform to the rule laid down in the Kelly case that: “It is true that this instruction did not give the jury any criterion by which they should estimate the present cash valué of the

1917The self-defense instruction complained of is number four given by the court, and is in these words: “If the jury believe from the evidence that at the time defendant struck and killed Welch, he believed in good, faith and had reasonable grounds to believe that he was- •then and there in danger of death or of great bodily harm at the hands of said Welch, and there appeared to defendant in the exercise of a reasonable judgment no other safe •or apparently safe means of averting the impending danger, if any there was, then the defendant had the right to strike and kill said Welch, and the jury w

1917The self-defense instruction complained of is number four given by the court, and is in these words: “If the jury believe from the evidence that at the time defendant struck and killed Welch, he believed in good, faith and had reasonable grounds to believe that he was- •then and there in danger of death or of great bodily harm at the hands of said Welch, and there appeared to defendant in the exercise of a reasonable judgment no other safe •or apparently safe means of averting the impending danger, if any there was, then the defendant had the right to strike and kill said Welch, and the jury w

1917Such an instruction was condemned in Biggs v. Commonwealth, 162 Ky. 103 , and if the jury, by their verdict in this case, had failed, as in the Biggs-case, to find both a minimum and maximum term within the prescribed limits of punishment, such failure would constitute reversible error as held in that case.