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[January 29, 1909] -
William Phelps, a mail carrier between Somerset and Hail, was shot by Constable John Kammerer, and physicians say he can not recover. The shooting occurred at a baptising near Hail, in the eastern part of Pulaski county. The bullet entered Phelps' abdomen. Kammerer, it is alleged, was trying to arrest Phelps when the shooting took place. [1]---
[February 5, 1909] -
John Kammerer, charged with killing William Phelps in Pulaski, was held over to circuit court without bail. [2]
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[November 20, 1909] -
John Kammerer, slayer of Willie Phelps, Somerset, given 21 years. [3]
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[February 24, 1910] -
Kammerer v. Commonwealth
COURT OF APPEALS OF KENTUCKY
137 Ky. 315; 125 S.W. 723; 1910 Ky. LEXIS 573
February 24, 1910, Decided
PRIOR HISTORY: [***1] Appeal from Pulaski Circuit Court. M. L. JARVIS, Circuit Judge. Defendant convicted and appeals.--Reversed.
DISPOSITION: Judgment reversed.
COUNSEL: E. P. MORROW, W. BOYD MORROW and WESLEY & BROWN for appellant.
JAMES BREATHITT, Attorney General, and TOM B. McGREGOR, Assistant Attorney General, for commonwealth.
JUDGES: JUDGE BARKER.
OPINION BY: BARKER
OPINION
[**723] [*316] OPINION OF THE COURT BY JUDGE BARKER--Reversing.
The appellant, John Kammerer, was a constable of Pulaski county, Ky., and had in his hands a capias pro fine issued for the arrest of William Phelps. This process had been duly and legally issued by a justice of the peace of Pulaksi county in the case of Commonwealth v. Phelps, and when it came to his hands the appellant, as constable, undertook to execute it by arresting Phelps on Sunday at a religious baptizing in Pulaski county. When the constable laid his hand on the shoulder of Phelps and demanded that he submit to arrest under the warrant which he held for him, the latter jerked away from the officer and drew a knife, and then walked away, commanding the officer to let him alone. The officer drew his pistol and followed Phelps, demanding that he surrender. In order [***2] to frighten Phelps, the officer fired one shot into the air, whereupon Phelps stopped, and the witnesses for the Commonwealth say, in substance, that the officer took deliberate aim at Phelps and shot him through the body, from which wound he in a few hours died. The defendant testified for himself that, after the shot was fired in the air, Phelps threw his knife, which was open, at the officer, and then put his hand in his hip pocket as if to draw a pistol, whereupon the officer, believing his life in danger, fired the fatal shot. The jury upon the trial, under the indictment charging him with murder, found appellant guilty of manslaughter and [*317] fixed [**724] his punishment at confinement in the penitentiary for 21 years. From the judgment based upon this verdict the defendant is here on appeal.
As the view which we have taken of the instructions given by the court requires the judgment to be reversed, we shall not discuss the facts of the case any further than to say that, if the evidence of the witnesses for the commonwealth is to be believed, the verdict was fully justified, and, on the other hand, if the testimony for the accused be true, he should have been found [***3] not guilty.
The learned trial court instructed the jury that the accused was a constable at the time of the killing, but was without authority to arrest the deceased on Sunday on the capias pro fine he then had against him. This was erroneous. The capias pro fine was duly and legally issued by a justice of the peace in a proceeding charging the defendant with a breach of the peace. Section 4567 of the Kentucky Statutes (Russell's St. § 245) authorizes the execution of process on Sunday issued on a charge of a breach of the peace. Rice v. Commonwealth, 66 Ky. 14, 3 Bush 14, and Watts v. Commonwealth, 68 Ky. 309, 5 Bush 309.
The trial court refused to give the jury any instruction based upon the right of self-defense. It seems to us that the accused was clearly entitled to a self-defense instruction. He testified that the defendant in the capias pro fine placed his hand in his hip pocket as if to draw a pistol, and that he (the accused), believing his own life was in danger at the time, fired the fatal shot. This testimony was supported by that of other witnesses, and clearly entitled the defendant to the instruction based upon self-defense which he asked.
[***4] [*318] Instruction No. 3 should have been omitted altogether. In this instruction the jury were told that, if the accused in good faith believed that he had a right to execute the warrant on Sunday, then they should find him guilty of manslaughter. We know of no authority for such an instruction. The principles of law regulating the conduct of officers in making arrests, where the arrest is resisted, are fully laid down in the cases of Stevens v. Commonwealth, 124 Ky. 32, 98 S.W. 284, 30 Ky. L. Rep. 290, and Reed v. Commonwealth, 125, Ky. 126, 100 S.W. 856, 30 Ky. L. Rep. 1212. When this case returns to the circuit court, all that will be necessary upon the next trial will be to apply the principles enunciated in these cases to the facts detailed in the case at bar.
Upon the trial in the circuit court the Commonwealth had two arguments, and the defendant only one. The court refused, upon the motion of the defendant, to require one of the counsel for the Commonwealth to precede the argument of defendant's counsel, and allowed both the counsel for the Commonwealth to argue the case after the argument for the defendant was made. This was erroneous. Section [***5] 228 of the Criminal Code of Practice provides: "If more than one counsel on each side argue the case they shall do so alternately." Upon another trial, this provision of the Code will be enforced.
Judgment reversed for further proceedings consistent with this opinion. [4]
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[November 16, 1910] -
November 16, 1910, Decided
PRIOR HISTORY: [***1] Appeal from Pulaski Circuit Court.
DISPOSITION: Judgment affirmed.
COUNSEL: EDWIN P. MORROW, W. B. MORROW and WESLEY & BROWN for appellant.
JAMES BREATHITT, Attorney General, and TOM B. McGREGOR, Asst. Attorney General, for appellee.
JUDGES: JUDGE CARROLL.
OPINION BY: CARROLL
OPINION
[*626] [**486] OPINION OF THE COURT BY JUDGE CARROLL--Affirming.
On a former appeal a judgment sentencing the appellant to a term in the penitentiary was reversed for errors pointed out in the opinion, which may be found in 137 Ky. 315.
[*627] On a re-trial the court gave the instruction in the form indicated in the opinion supra, but it is now said that the instruction upon the subject of the rights of the accused in attempting to make the arrest, although it conforms to the one directed to be given, was not such a statement of the law as appellant was entitled to have. The instruction given by the court reads as follows:
"The court instructs the jury that at the time the defendant, John Kammerer, shot and killed the deceased, he was a constable of Pulaski county, and that it was his duty to execute the capias profine he then had in his hands against the deceased, Willie Phelps, by arresting him [***2] upon his failure to pay or replevy the same, and if you shall believe from the evidence in this case that the defendant undertook to arrest the deceased on said capias profine, and in so doing, the deceased resisted the arrest by the use or threatened use of a deadly weapon or other force or violence, then in that event the defendant had the right to use such force as was necessary or such as appeared to him in the exercise of a reasonable judgment to be necessary to overcome such resistance, even to the taking of his life; and if you shall believe from the evidence that under such circumstances the defendant took the life of the deceased, the killing was excusable, if the defendant could not otherwise overcome the forcible resistance of the deceased, or it reasonably appeared to him that he could not do so."
This instruction has been more than once approved in cases like this as will be seen from the authorities cited in the opinion supra, and we think it states the law as favorable to the appellant as he had the right to demand.
Counsel in their brief say that the court should have instructed the jury, that appellant did not have to wait until his life was in peril before shooting [***3] Phelps, but had the right to shoot him if he believed Phelps would cut him if he attempted to make the arrest. In other words, if the appellant believed and there was reasonable grounds for him to believe that his life would be in danger if he attempted to make the arrest, he had the right to use his own weapon against that in the hands of the law-breaker resisting the mandates of the Commonwealth. We do not clearly understand the distinction counsel makes between the instruction rejected and the one given. In the one given the jury was plainly told that appellant had the right to arrest Phelps and that if Phelps resisted arrest by the use of a deadly weapon or [*628] other force or violence, then appellant had the right to use such force as was necessary or appeared to him in the exercise of a reasonable judgment to be necessary to overcome such resistance, even to the taking of the life of Phelps. It seems to us that except as to mere form of expression, the court gave to the jury an instruction in substance the same as the one requested.
It is further assigned as error that counsel employed to assist in the prosecution was guilty of misconduct in his argument to the jury. [***4] The language complained of is incorporated in the motion for a new trial, but does not appear in the bill of exceptions. We have frequently held that in order to be available in this court errors like this relied upon for reversal must appear in the bill of exceptions otherwise we cannot consider them. But aside from this the argument of counsel, although improper, was not so prejudicial as to authorize a reversal even had it been properly shown in the bill of exceptions.
Another error assigned is the testimony of [**487] R. L. Phelps relating a dying declaration made to him by the deceased. The admission of this evidence, in view of the other evidence, if error at all was harmless.
There appears no reason for disturbing the judgment and it is affirmed. [5]
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[November 16, 1910] -
Kammerer v. Commonwealth.
COURT OF APPEALS OF KENTUCKY
140 Ky. 626; 131 S.W. 486; 1910 Ky. LEXIS 323
November 16, 1910, Decided
PRIOR HISTORY: [***1] Appeal from Pulaski Circuit Court.
DISPOSITION: Judgment affirmed.
COUNSEL: EDWIN P. MORROW, W. B. MORROW and WESLEY & BROWN for appellant.
JAMES BREATHITT, Attorney General, and TOM B. McGREGOR, Asst. Attorney General, for appellee.
JUDGES: JUDGE CARROLL.
OPINION BY: CARROLL
OPINION
[*626] [**486] OPINION OF THE COURT BY JUDGE CARROLL--Affirming.
On a former appeal a judgment sentencing the appellant to a term in the penitentiary was reversed for errors pointed out in the opinion, which may be found in 137 Ky. 315.
[*627] On a re-trial the court gave the instruction in the form indicated in the opinion supra, but it is now said that the instruction upon the subject of the rights of the accused in attempting to make the arrest, although it conforms to the one directed to be given, was not such a statement of the law as appellant was entitled to have. The instruction given by the court reads as follows:
"The court instructs the jury that at the time the defendant, John Kammerer, shot and killed the deceased, he was a constable of Pulaski county, and that it was his duty to execute the capias profine he then had in his hands against the deceased, Willie Phelps, by arresting him [***2] upon his failure to pay or replevy the same, and if you shall believe from the evidence in this case that the defendant undertook to arrest the deceased on said capias profine, and in so doing, the deceased resisted the arrest by the use or threatened use of a deadly weapon or other force or violence, then in that event the defendant had the right to use such force as was necessary or such as appeared to him in the exercise of a reasonable judgment to be necessary to overcome such resistance, even to the taking of his life; and if you shall believe from the evidence that under such circumstances the defendant took the life of the deceased, the killing was excusable, if the defendant could not otherwise overcome the forcible resistance of the deceased, or it reasonably appeared to him that he could not do so."
This instruction has been more than once approved in cases like this as will be seen from the authorities cited in the opinion supra, and we think it states the law as favorable to the appellant as he had the right to demand.
Counsel in their brief say that the court should have instructed the jury, that appellant did not have to wait until his life was in peril before shooting [***3] Phelps, but had the right to shoot him if he believed Phelps would cut him if he attempted to make the arrest. In other words, if the appellant believed and there was reasonable grounds for him to believe that his life would be in danger if he attempted to make the arrest, he had the right to use his own weapon against that in the hands of the law-breaker resisting the mandates of the Commonwealth. We do not clearly understand the distinction counsel makes between the instruction rejected and the one given. In the one given the jury was plainly told that appellant had the right to arrest Phelps and that if Phelps resisted arrest by the use of a deadly weapon or [*628] other force or violence, then appellant had the right to use such force as was necessary or appeared to him in the exercise of a reasonable judgment to be necessary to overcome such resistance, even to the taking of the life of Phelps. It seems to us that except as to mere form of expression, the court gave to the jury an instruction in substance the same as the one requested.
It is further assigned as error that counsel employed to assist in the prosecution was guilty of misconduct in his argument to the jury. [***4] The language complained of is incorporated in the motion for a new trial, but does not appear in the bill of exceptions. We have frequently held that in order to be available in this court errors like this relied upon for reversal must appear in the bill of exceptions otherwise we cannot consider them. But aside from this the argument of counsel, although improper, was not so prejudicial as to authorize a reversal even had it been properly shown in the bill of exceptions.
Another error assigned is the testimony of [**487] R. L. Phelps relating a dying declaration made to him by the deceased. The admission of this evidence, in view of the other evidence, if error at all was harmless.
There appears no reason for disturbing the judgment and it is affirmed. [5]
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[1] Excerpt from "In Neighboring Counties." The Interior Journal, Stanford, KY. January 29, 1909. Page 1. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052021/1909-01-29/ed-1/seq-1/
[2] Excerpt from "News Notes." The Interior Journal, Stanford, KY. February 5, 1909. Page 1. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052021/1909-02-05/ed-1/seq-1/
[3] Excerpt from "Kentucky Kernels." The Paducah Evening Sun, Paducah, KY. November 20, 1909. Page 4. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052114/1909-11-20/ed-1/seq-4/
[4] Kammerer v. Commonwealth, 137 Ky. 315, 125 S.W. 723 (1910).
[5] Kammerer v. Commonwealth, 140 Ky. 626, 131 S.W. 486 (1910).
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