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[March 17, 1905] -
Dan Miller shot and killed Zack Ward at Pittsburg. [1]
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[May 30, 1905] -
FOUND GUILTY ON MURDER CHARGE
LONDON, Ky., May 29.--A jury found Dan Miller guilty today of the murder of Zack Ward, of Pittsburg, a mining town two miles west of here, last spring, and gave him a life sentence. The case will be appealed. [2]
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[June 2, 1905] -
Dan Miller, for killing Zach Ward in Laurel, got a life sentence. [3]---
[June 6, 1905] -
Dan Miller, who killed Zach Ward at Pittsburg and who was recently given a life sentence, was brought here [Stanford?] Sunday to remain until the court of appeals acts on his case. [4]
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[October 20, 1905] -
George Ward was acquitted at London of the charge of conspiring to kill Bill Miller. [5]
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[March 23, 1906] -
Kentucky Court of Appeals.
MILLER
v.
COMMONWEALTH.
MILLER
v.
COMMONWEALTH.
March 23, 1906.
HOMICIDE--SELF-DEFENSE--EVIDENCE--INSTRUCTIONS.
Defendant's brother having had an altercation with H., both defendant and his brother left the place, and defendant armed himself and returned for the purpose of attacking H. H. had made no effort to shoot defendant, his threats being directed to defendant's brother, who had not returned, when defendant called to deceased to get out of the way so that he could shoot H., whereupon he immediately discharged his gun, by which deceased was shot and killed before H.'s pistol fired. Held, that an instruction that if defendant first willfully and feloniously sought either deceased or H. for the purpose of feloniously assaulting them or one of them with a deadly weapon, and continued such assault until the shooting and in so doing made the harm or danger, etc., defendant was not entitled to release on the ground of self-defense, was proper.
Appeal from Circuit Court, Laurel County. "Not to be officially reported."
Daniel Miller was convicted of murder, and he appeals. Affirmed.
D. K. Rawlins, for appellant. N. B. Hays, for appellee.
HOBSON, C. J. Appellant, Daniel Miller, having been indicted for the murder of Zach Ward, was found guilty and his punishment fixed at imprisonment in the penitentiary for life. The only error relied on for a reversal of the judgment is that the court misinstructed the jury as to the law of self-defense. The facts shown by the evidence are these: The killing occurred in Pittsburg, Laurel county in March, 1905. The deceased, Zach Ward, had a keg of beer on the side of the railroad, and a crowd was there with him, drinking beer. One of them, George Ward, his brother, went over to a store not far off to get some glasses, and while there he invited Eli Hall to go with him and take a drink. Hall went over. When he got there he met Bill Miller, a brother of the appellant, Dan Miller. Some conversation took place between him and Bill Miller about Breathitt county, as Hall had come from Breathitt county, and in some way Bill Miller said something to Hall about his having to leave Breathitt county on account of "lie swearing." The parties were all drinking, and before any difficulty occurred others intervened, and Hall went back to the store from which he had come. After some time George Ward came over to the store again, and asked Hall to go back and take another drink. He told Hall then that somebody was talking over there about the "lie swearing" business. Hall put a pistol in his pocket, and George Ward had a pistol. When he got over to the beer keg, Hall asked for Bill Miller, and was told by appellant, Dan Miller, who was his brother, that Bill had left. While there is some conflict in the evidence as to what occurred just here, the weight of it shows that Hall was cursing and swearing and shooting off his pistol. In a short time everybody had left except George and Zach Ward and Hall; Zach Ward being quite drunk. Zach then said that he would carry the keg away with him, and Hall helped him up with the keg on his shoulder, and the three started on with it. After a little Zach Ward dropped the keg, and they all stopped. This was about the railroad, and some steps from where they had started. Hall says that at this juncture he heard somebody say, "George and Zach Ward, take care of yourselves!" that he looked in the direction of the voice, and saw a man with a gun presented at him; that he jumped to run, grabbing hold of Zach Ward and holding him between him and the gun; that after they had run a few steps he sidestepped and dropped down, Ward continuing to run; that then the gun went off, and he fired three shots with his pistol at the man with the gun. It was quite dark. Hall and George Ward then went on to the place where they had started not knowing that Zach Ward was shot, and some 30 minutes afterwards he was found on the ground dead. They seem to have thought that Miller was killed. Miller testifies that, when Hall was shooting off his pistol and cursing his brother, he became alarmed that he would kill his brother if he returned, and went and got the gun for protection; that after getting the gun, he was looking for his brother, when he came upon the Wards and Hall on the railroad track; that this was done some distance from where he had left them, and he had no idea of meeting them there; that George Ward had told him to get away and to get his brother Bill out of town or Hall would kill him, and that as he came upon them on the railroad he heard Zach Ward say, "I don't want you to hurt them Miller boys;" that he looked up and they were scuffling, and some one said, "That is not Bill," and Hall said with an oath, "I will kill the first Miller I see," and thereupon fired; that he, Miller, then shot; that Ward was his friend; that he had no intention of hurting him; and that he said, "Look out! Get out of the way, Ward!" before he shot.
*711 On these facts the court gave the jury this instruction on the law of self-defense: "If you shall believe from the evidence that at the time the defendant shot at and killed Zach Ward, or at the time he shot at Eli Hall, and killed Zach Ward (if you shall believe from the evidence beyond a reasonable doubt that he did the one or the other) he believed, and had reasonable grounds to believe that he or his brother William Miller was then and there in danger of death, or the infliction of some great bodily harm at the hands of the said Zach Ward or Eli Hall, or any person or persons acting with or either of them, and that it was necessary, or was believed by the defendant in the exercise of a reasonable judgment to be necessary, to so shoot at and kill said Ward or to shoot at Eli Hall in order to avert that danger, real or to the defendant apparent, then you ought to acquit the defendant on the grounds of self-defense or the defense of another and apparent necessity therefor, unless you shall further believe from the evidence beyond a reasonable doubt that the defendant first willfully and feloniously sought the deceased, or said Eli Hall for the purpose of feloniously assaulting them or one of them with a deadly weapon, and continued such assault until the shooting, and in so doing made the harm or danger, if any there was toward him, from the said Ward, or the said Hall or any other person acting with them, if any, necessary or excusable on their part, in which event you ought not to excuse the defendant upon the grounds of self-defense and apparent necessity therefor."
We fail to see that there is any error in the instruction. The weight of the evidence shows that the gun which Miller had was fired before the pistol which Hall had. The proof all shows that the shooting of Ward was an accident; that Miller did not want to hurt Ward, but was trying to shoot Hall; but there were facts shown warranting the jury in concluding that Miller left the fire at which the keg of beer was, and went off to get the gun for the purpose of arming himself, and that he returned with the gun for the purpose of attacking Hall. If, when he got to the house, he had staid there he would have been in no danger. Hall had made no effort to shoot him. The threats of Hall were directed against Bill Miller, his brother, and his brother had left. He could have safely looked for his brother and taken him home as he was advised by George Ward to do without getting the shotgun. If he got the shotgun and was hunting for Hall with it, and when he found him called upon Ward to get out of the way so that he could shoot Hall, as testified to by Hall, he could not, after thus himself bringing on the difficulty, rely on self-defense. The case of Carnes v. Commonwealth, 87 S. W. 1123, 27 Ky. Law Rep. 1205, has no application. The instruction was condemned in that case because deemed not applicable to the facts. It was not held that the instruction was not a correct statement of the law. The instruction has often been approved as proper where the facts warranted the giving of it. Commonwealth v. Hourigan, 89 Ky. 305, 12 S. W. 550; Godfrey v. Commonwealth, 21 S. W. 1047, 15 Ky. Law Rep. 3; Ross v. Commonwealth, 55 S. W. 4, 21 Ky. Law Rep. 1344; Blankenship v. Commonwealth, 66 S. W. 994, 23 Ky. Law Rep. 1995.
The verdict is a severe one, but we are not authorized to disturb it on the facts. If Miller went and armed himself, and returned with the shotgun for the purpose of killing Hall, then he is no less guilty if, in attempting to do this, he shot, not Hall, as he intended, but Ward, who was his friend.
Judgment affirmed. [6]
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[1] Excerpt from "Here and There." Semi-Weekly Interior Journal, Stanford, KY. March 17, 1905. Page 2. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052020/1905-03-17/ed-1/seq-2/
[2] "Found Guilty on Murder Charge." Lexington Herald, Lexington, KY. May 30, 1905. Page 5. Genealogybank.com.
[3] Excerpt from "In Neighboring Counties." The Interior Journal, Stanford, KY. June 2, 1905. Page 1. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052021/1905-06-02/ed-1/seq-1/
[4] Excerpt from "Locals." The Interior Journal, Stanford, KY. June 6, 1905. Page 3. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052021/1905-06-06/ed-1/seq-3/
[5] Excerpt from "In Neighboring Counties." The Interior Journal, Stanford, KY. October 20, 1905. Page 1. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052021/1905-10-20/ed-1/seq-1/
[6] Miller v. Commonwealth, 91 S.W. 710 (1906). Retrieved from Google Books.
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