FARMER KILLED IN A FIGHT.
KILLING IN ROCKCASTLE -- Abe Drew, a farmer, was shot and killed in a fight with Henry Hellard near Cooksburg, Rockcastle county. 
The attorneys for Henry Hellard, who was given 21 years in the pen for the killing of Abe Drew, asked for a new trial, which was overruled an an appeal will be taken to the Court of Appeals. 
Hent Hellard was given 21 years in the penitentiary for killing Abe Drew. 
Court of Appeals of Kentucky.
May 6, 1904.
Appeal from Circuit Court, Rockcastle County.
“Not to be officially reported.”
Henry Hellard was convicted of voluntary manslaughter, and appeals. Reversed.
*482 C. C. Williams, for appellant. N. B. Hays and Loraine Mix, for the Commonwealth.
The appellant was tried at the February, 1904, term of the Rockcastle circuit court, on the charge of murder by shooting and killing one Abe Drew. He was convicted of the crime of voluntary manslaughter, and sentenced to a term of 21 years in the penitentiary.
Appellant complains of the action of the lower court in refusing to allow him to prove by J. J. Drew, a cousin of the deceased, that, when he went to Hellard's house after the dead body, he stated to R. M. Johnson and family that, from what Ralph Drew told him immediately after the shooting, Hellard ought to be acquitted; that he (witness) would have done the same thing that Hellard did. The court was right in refusing to allow this statement to go to the jury. It amounted only to an opinion of the witness, and that formed from hearsay, which was clearly incompetent.
The only witness introduced for the commonwealth who professed to have been present at the killing was Ralph Drew, a son of the deceased. He stated that he and his father were walking up the public road which passed appellant's house, and, when about 75 yards from the house, they saw appellant chopping wood on the side of the road, immediately in front of his house; that, when appellant saw them coming, he at once went to his door, and his wife handed him a pistol; that he then took a rest on the fence, and fired two shots at the deceased; that deceased then took from witness a shotgun which he was carrying, cocked it, and fired. Witness thought it went off accidentally. Then the deceased threw the gun down and *483 walked slowly to appellant's gate, picked up the ax, went into appellant's yard after him, with the ax raised in a striking position, and ran him around the house once or twice. Appellant, as he ran, fired two or three shots at deceased, the last one killing him.
Appellant contended that the court erred in adding the following to the instruction on self-defense: “Unless you should further believe from the evidence, beyond a reasonable doubt, that the defendant sought and brought on the difficulty with the deceased in which the shooting occurred in the use or the threatened use of a deadly weapon, or that the defendant and the deceased mutually and willingly entered into a combat with each other with deadly weapons, in either of which later state of case the defendant cannot be excused on the grounds of self-defense.” We are of the opinion that the court did not err in making this addition to this instruction, but did err, to appellant's prejudice, in not also adding “unless you believe from the evidence that he in good faith abandoned the difficulty or mutual combat before he shot Drew.” See Logsdon v. Commonwealth, 40 S. W. 775, 19 Ky. Law Rep. 413. We are of the opinion that, under the proof introduced, it was prejudicial to the substantial rights of appellant not to give him the benefit of this addition to the instruction. According to Ralph Drew's testimony, after the appellant fired the first two shots, his father walked slowly the 75 yards, picked up the ax, and entered appellant's yard, running him around his house, when he fired the last two or three shots. From these facts, and others in the record not necessary to mention, we think the court should have permitted the jury to determine whether or not appellant had, in good faith, given up the intention, if he had such intention, of further attempting to harm the deceased. According to the theory of appellant and his witnesses, he had a clear case of self-defense. But we refrain from further discussing the evidence, or expressing an opinion thereon, for the reason that the case will have to be tried again.
Wherefore the judgment is reversed, and the cause remanded for further proceedings consistent herewith. 
Richard Johnson, who is indicted in the Abe Drew murder case, was over this week looking up witnesses. 
Henry Hellard gave bond in the sum of $750.00 and case continued until next court. 
Court of Appeals of Kentucky.
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