self-defense instruction in Kentucky

1940The same modification of the self-defense instruction asked for here was requested in Connor v. Com., 118 Ky. 497 , 81 S. W. 259 , and wesaid_ the trial court in that case properly refused to-modify it.

1940The same modification of the self-defense instruction asked for here was requested in Connor v. Com., 118 Ky. 497 , 81 S. W. 259 , and wesaid_ the trial court in that case properly refused to-modify it.

1970In Martin v. Com., 299 Ky. 1 , 184 S.W.2d 234 (1944), we reviewed a case in which “The self-defense instruction was in the usual form, but limited the jury to consideration of the right of defendant to shoot and kill, in the event he believed and had reasonable grounds to believe that he was in danger of death or great bodily harm at the hands of Billie Martin, Jr.” (Basically the same instruction given in the instant case.) In reversing for a new trial, we suggested that the instruction laid down in Vol. 3, Stanley’s Instructions to Juries, 1204, Sec. 900 would afford a more workable pattern.

1970In Martin v. Com., 299 Ky. 1 , 184 S.W.2d 234 (1944), we reviewed a case in which “The self-defense instruction was in the usual form, but limited the jury to consideration of the right of defendant to shoot and kill, in the event he believed and had reasonable grounds to believe that he was in danger of death or great bodily harm at the hands of Billie Martin, Jr.” (Basically the same instruction given in the instant case.) In reversing for a new trial, we suggested that the instruction laid down in Vol. 3, Stanley’s Instructions to Juries, 1204, Sec. 900 would afford a more workable pattern.

1931It is argued in support of ground 3 that the same court who tried the cases of Slone v. Commonwealth, 230 Ky. 199 , 18 S. W. (2d) 1005 ; Caudill v. Commonwealth, 234 Ky. 142 , 27 S. W. (2d) 705 , and Slone v. Commonwealth, 236 Ky. 299 , 33 S. W. (2d) 8 , committed the same error in his given self-defense instruction in this case as we held was done in those cases, i. e., that he so framed the self-defense instruction that was given to the jury as to impress upon the minds of its members that it was the duty of defendant, 'before he could successfully rely upon his .right of self-defense, to fl

1931It is argued in support of ground 3 that the same court who tried the cases of Slone v. Commonwealth, 230 Ky. 199 , 18 S. W. (2d) 1005 ; Caudill v. Commonwealth, 234 Ky. 142 , 27 S. W. (2d) 705 , and Slone v. Commonwealth, 236 Ky. 299 , 33 S. W. (2d) 8 , committed the same error in his given self-defense instruction in this case as we held was done in those cases, i. e., that he so framed the self-defense instruction that was given to the jury as to impress upon the minds of its members that it was the duty of defendant, 'before he could successfully rely upon his .right of self-defense, to fl

1932Complaint is made of the self-defense instruction because it contained the phrase “thát there was no other safe means, or to the defendant, Lee Johnson, there was no other apparent safe means of avoiding or warding off such danger or such apparent danger except to shoot,” etc. The identical language was approved in Hall v. Commonwealth, 242 Ky. 717 , 47 S. W. (2d) 538 , and cases cited therein.

1932Complaint is made of the self-defense instruction because it contained the phrase “thát there was no other safe means, or to the defendant, Lee Johnson, there was no other apparent safe means of avoiding or warding off such danger or such apparent danger except to shoot,” etc. The identical language was approved in Hall v. Commonwealth, 242 Ky. 717 , 47 S. W. (2d) 538 , and cases cited therein.

1931It is argued in support of ground 3 that the same court who tried the cases of Slone v. Commonwealth, 230 Ky. 199 , 18 S. W. (2d) 1005 ; Caudill v. Commonwealth, 234 Ky. 142 , 27 S. W. (2d) 705 , and Slone v. Commonwealth, 236 Ky. 299 , 33 S. W. (2d) 8 , committed the same error in his given self-defense instruction in this case as we held was done in those cases, i. e., that he so framed the self-defense instruction that was given to the jury as to impress upon the minds of its members that it was the duty of defendant, 'before he could successfully rely upon his .right of self-defense, to fl

1931It is argued in support of ground 3 that the same court who tried the cases of Slone v. Commonwealth, 230 Ky. 199 , 18 S. W. (2d) 1005 ; Caudill v. Commonwealth, 234 Ky. 142 , 27 S. W. (2d) 705 , and Slone v. Commonwealth, 236 Ky. 299 , 33 S. W. (2d) 8 , committed the same error in his given self-defense instruction in this case as we held was done in those cases, i. e., that he so framed the self-defense instruction that was given to the jury as to impress upon the minds of its members that it was the duty of defendant, 'before he could successfully rely upon his .right of self-defense, to fl

1931It is argued in support of ground 3 that the same court who tried the cases of Slone v. Commonwealth, 230 Ky. 199 , 18 S. W. (2d) 1005 ; Caudill v. Commonwealth, 234 Ky. 142 , 27 S. W. (2d) 705 , and Slone v. Commonwealth, 236 Ky. 299 , 33 S. W. (2d) 8 , committed the same error in his given self-defense instruction in this case as we held was done in those cases, i. e., that he so framed the self-defense instruction that was given to the jury as to impress upon the minds of its members that it was the duty of defendant, 'before he could successfully rely upon his .right of self-defense, to fl

1931It is argued in support of ground 3 that the same court who tried the cases of Slone v. Commonwealth, 230 Ky. 199 , 18 S. W. (2d) 1005 ; Caudill v. Commonwealth, 234 Ky. 142 , 27 S. W. (2d) 705 , and Slone v. Commonwealth, 236 Ky. 299 , 33 S. W. (2d) 8 , committed the same error in his given self-defense instruction in this case as we held was done in those cases, i. e., that he so framed the self-defense instruction that was given to the jury as to impress upon the minds of its members that it was the duty of defendant, 'before he could successfully rely upon his .right of self-defense, to fl

1999Thus, in McGinnis , where the defendant claimed both self-defense and the absence of intent to kill, “the prosecutor argued in effect, repeatedly, that self-defense was not available on a charge of wanton murder, so forget the self-defense claim— the accused had convicted himself of wanton murder out of his own mouth [by testifying that he shot the victim, but did not intend to kill him].” McGinnis, 875 S.W.2d at 526 .

1998Thus, in McGinnis , where the defendant claimed both self-defense and the absence of intent to kill, “the prosecutor argued in effect, repeatedly, that self-defense was not available on a charge of wanton murder, so forget the self-defense claim — the accused had convicted himself of wanton murder out of his own mouth [by testifying that he shot the victim, but did not intend to kill him].” McGinnis, 875 S.W.2d at 526 .

1997Howard v. Commonwealth, Ky., 240 S.W.2d 616 (1951); Howard v. Commonwealth, 260 Ky. 467 , 86 S.W.2d 126 (1935); Pelfrey v. Commonwealth, 247 Ky. 484 , 57 S.W.2d 474 (1933); and Maiden v. Commonwealth, 203 Ky. 446 , 262 S.W. 588 (1924).

1997Howard v. Commonwealth, Ky., 240 S.W.2d 616 (1951); Howard v. Commonwealth, 260 Ky. 467 , 86 S.W.2d 126 (1935); Pelfrey v. Commonwealth, 247 Ky. 484 , 57 S.W.2d 474 (1933); and Maiden v. Commonwealth, 203 Ky. 446 , 262 S.W. 588 (1924).

1992The defendant was convicted of wanton murder to which the self-defense instruction does not apply as clearly stated in Shannon v. Commonwealth, Ky., 767 S.W.2d 548 (1989).

1992To all of this the majority would reply, I think, that despite the evidence of justification, and despite the inadequacy of the self-protection instruction, any error in this regard was harmless, because “[t]he defendant was convicted of wanton murder to which the self-defense instruction does not apply as clearly stated in Shannon v. Commonwealth, Ky., 767 S.W.2d 548 (1989).” (Ante at 398.) With utmost respect, I submit that Shannon is demonstrably wrong, and must be overruled as contrary to statute, contrary to its own cited authorities, and contrary to the Constitution.

1997Howard v. Commonwealth, Ky., 240 S.W.2d 616 (1951); Howard v. Commonwealth, 260 Ky. 467 , 86 S.W.2d 126 (1935); Pelfrey v. Commonwealth, 247 Ky. 484 , 57 S.W.2d 474 (1933); and Maiden v. Commonwealth, 203 Ky. 446 , 262 S.W. 588 (1924).

1997Howard v. Commonwealth, Ky., 240 S.W.2d 616 (1951); Howard v. Commonwealth, 260 Ky. 467 , 86 S.W.2d 126 (1935); Pelfrey v. Commonwealth, 247 Ky. 484 , 57 S.W.2d 474 (1933); and Maiden v. Commonwealth, 203 Ky. 446 , 262 S.W. 588 (1924).

1958Stanley’s Instructions to Juries, Volume 3, Section 897, and cases cited therein; Begley v. Commonwealth, 263 Ky. 824 , 94 S.W. 2d 4 ; Quisenberry v. Commonwealth, 299 Ky. 390 , 185 S.W.2d 669 .

1958Stanley’s Instructions to Juries, Volume 3, Section 897, and cases cited therein; Begley v. Commonwealth, 263 Ky. 824 , 94 S.W. 2d 4 ; Quisenberry v. Commonwealth, 299 Ky. 390 , 185 S.W.2d 669 .

1952Lewis v. Com., 237 Ky. 786 , 36 S.W.2d 639 .

1952Lewis v. Com., 237 Ky. 786 , 36 S.W.2d 639 .

1948Perhaps the better form is the self-defense instruction in sec. 891, instructing that the defendant was justified in *490 killing the deceased where his act “was necessary, or seemed to him in the exercise of reasonable judgment to be necessary, in order to protect himself from said danger, real or to the defendant apparent.” Where there is a claim of defense of other persons, the approved form in sec. 892 is “that it was necessary or was believed by the defendant in the exercise of reasonable judgment to be necessary to shoot the deceased in order to avert that danger, real or to the defendan

1948Perhaps the better form is the self-defense instruction in sec. 891, instructing that the defendant was justified in *490 killing the deceased where his act “was necessary, or seemed to him in the exercise of reasonable judgment to be necessary, in order to protect himself from said danger, real or to the defendant apparent.” Where there is a claim of defense of other persons, the approved form in sec. 892 is “that it was necessary or was believed by the defendant in the exercise of reasonable judgment to be necessary to shoot the deceased in order to avert that danger, real or to the defendan

1940The self-defense instruction says: “If the jury shall believe from the evidence that at the time the defendant shot Sullins, if he did so, he in good faith believed, and had reasonable grounds to believe, that he was then and there in danger of death, or the infliction of some great bodily harm, at the hands of said Sullins, and there appeared to defendant, in the exercise of a reasonable judgment at the time and under the circumstances, no other safe means of averting the danger, either real or to him apparent, except to shoot, wound or kill said Sullins, the jury will find the defendant not

1940The self-defense instruction says: “If the jury shall believe from the evidence that at the time the defendant shot Sullins, if he did so, he in good faith believed, and had reasonable grounds to believe, that he was then and there in danger of death, or the infliction of some great bodily harm, at the hands of said Sullins, and there appeared to defendant, in the exercise of a reasonable judgment at the time and under the circumstances, no other safe means of averting the danger, either real or to him apparent, except to shoot, wound or kill said Sullins, the jury will find the defendant not

1926As well said by this court in the case of Davis v. Commonwealth, 193 Ky. 597 , 237 S. W. 24 : “That the law applicable to every state of ease supported by the evidence to any reasonable degree should be given to the jury is an axiom, but it is equally true that the law applicable to a state of case which the evidence does not conduce to support need not be given in an instruction to the jury, as the questions at issue would not be elucidated by instrue *480 tions on abstract legal principles not supported by the facts.” As there was no claim by appellant or any of Ms witnesses that he shot in

1926As well said by this court in the case of Davis v. Commonwealth, 193 Ky. 597 , 237 S. W. 24 : “That the law applicable to every state of ease supported by the evidence to any reasonable degree should be given to the jury is an axiom, but it is equally true that the law applicable to a state of case which the evidence does not conduce to support need not be given in an instruction to the jury, as the questions at issue would not be elucidated by instrue *480 tions on abstract legal principles not supported by the facts.” As there was no claim by appellant or any of Ms witnesses that he shot in

1933This statement of the evidence equally demonstrates the lack of merit in the second contention of appellant, since he nowhere claimed in his proof that he shot in defense of himself or of any one in his crowd, or that he felt that he or any one in that crowd wa« in *344 any danger that justified him shooting in his or their defense." As said, in the case of Clark v. Commonwealth, 227 Ky. 418 , 13 S. W. (2d) 250 , 252: “The purpose of instructions is to enable the jury; to apply the law to the facts adduced on the trial.; A self-defense instruction should never be given' when there is no eviden

1933This statement of the evidence equally demonstrates the lack of merit in the second contention of appellant, since he nowhere claimed in his proof that he shot in defense of himself or of any one in his crowd, or that he felt that he or any one in that crowd wa« in *344 any danger that justified him shooting in his or their defense." As said, in the case of Clark v. Commonwealth, 227 Ky. 418 , 13 S. W. (2d) 250 , 252: “The purpose of instructions is to enable the jury; to apply the law to the facts adduced on the trial.; A self-defense instruction should never be given' when there is no eviden

1932In the recent case of Caudill v. Commonwealth, 239 Ky. 712 , 40 S. W. (2d) 334 , this court, in disposing of a similar contention, said: “The judgment on the former appeal was reversed because the self-defense instruction embodied by the use of the word ‘escaping’ the idea that appellant, in order to avail himself of the right of self-defense, had ‘to retreat to the wall.’ On the second trial, the court eliminated the word ‘escaping’ from the instruction and substituted in lieu thereof the word ‘avoiding.’ While it would have been better for the court to have followed the time-honored form of

1932In the recent case of Caudill v. Commonwealth, 239 Ky. 712 , 40 S. W. (2d) 334 , this court, in disposing of a similar contention, said: “The judgment on the former appeal was reversed because the self-defense instruction embodied by the use of the word ‘escaping’ the idea that appellant, in order to avail himself of the right of self-defense, had ‘to retreat to the wall.’ On the second trial, the court eliminated the word ‘escaping’ from the instruction and substituted in lieu thereof the word ‘avoiding.’ While it would have been better for the court to have followed the time-honored form of

1932But we held in the case of Cupp v. Commonwealth, 208 Ky. 231 , 270 S. W. 774, 775 , that, although the principal and leading instructions did not contain such excusing language, yet, if the court gave the proper self-defense instruction, the error in such omissions from strict propriety would be cured, and it would thereby become a harmless one.

1932But we held in the case of Cupp v. Commonwealth, 208 Ky. 231 , 270 S. W. 774, 775 , that, although the principal and leading instructions did not contain such excusing language, yet, if the court gave the proper self-defense instruction, the error in such omissions from strict propriety would be cured, and it would thereby become a harmless one.

1932As to the last complaint urged, that the instruction was erroneous in not giving the whole law of the case by instructing the jury as to the right of self-defense, where the plea was that the accused shot in “defense of himself, his family and his home, ’ ’ by. not including in the self-defense instruction the further instruction as to the right of the accused to protect himself, his family and his home, the ground of this objection was considered and discussed by this court in the case of Watson v. Commonwealth, 132 Ky. 46 , 116 S. W. 287, 289 , wherein the court held that the self-defense in

1932As to the last complaint urged, that the instruction was erroneous in not giving the whole law of the case by instructing the jury as to the right of self-defense, where the plea was that the accused shot in “defense of himself, his family and his home, ’ ’ by. not including in the self-defense instruction the further instruction as to the right of the accused to protect himself, his family and his home, the ground of this objection was considered and discussed by this court in the case of Watson v. Commonwealth, 132 Ky. 46 , 116 S. W. 287, 289 , wherein the court held that the self-defense in

1932Wagner v. Commonwealth, 108 S. W. 318 , 32 Ky. Law Rep. 1185 ; Hoskins v. Commonwealth, 145 Ky. 580 , 140 S. W. 1040 ; Cockrill v. Commonwealth, 95.

1932Wagner v. Commonwealth, 108 S. W. 318 , 32 Ky. Law Rep. 1185 ; Hoskins v. Commonwealth, 145 Ky. 580 , 140 S. W. 1040 ; Cockrill v. Commonwealth, 95.

1931The case will have to be reversed on account of error in the self-defense instruction; it being the same instruc *120 tion condemned in the cases of Slone v. Commonwealth, 236 Ky. 299 , 33 S. W. (2d) 8 , and Oliver v. Commonwealth, 236 Ky. 672 , 33 S. W. (2d) 684 , decided December 19, 1930.

1931The case will have to be reversed on account of error in the self-defense instruction; it being the same instruc *120 tion condemned in the cases of Slone v. Commonwealth, 236 Ky. 299 , 33 S. W. (2d) 8 , and Oliver v. Commonwealth, 236 Ky. 672 , 33 S. W. (2d) 684 , decided December 19, 1930.

1929Gambrell v. Commonwealth, 130 Ky. 513 , 113 S. W. 476 ; Frasure v. Commonwealth, 169 Ky. 620 , 185 S. W. 146 ; Roberson’s Criminal Law, sec. 1872.

1929Gambrell v. Commonwealth, 130 Ky. 513 , 113 S. W. 476 ; Frasure v. Commonwealth, 169 Ky. 620 , 185 S. W. 146 ; Roberson’s Criminal Law, sec. 1872.