December 26, 2017

Freeman Farris Kills Robert Land, Garrard, 1878


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[May 29, 1878] -


Robert Land, of Madison County, Shot and Killed by Freeman Farris -- Farris Taken to Boyle County Jail. 

(Special Dispatches to the Courier-Journal.)

LANCASTER, KY., May 28. -- An unusually lively County Court day yesterday culminated last night, about nine o'clock, in the shooting and killing of Robert Land, a citizen of Madison county, by Freeman Farris, a negro of this place. Whisky had been flowing freely all day, and Land, together with several friends, had imbibed considerable. On leaving town the party encountered a lot of negroes quarreling in the suburbs. Land stopped and held some discussion with them, the rest of the party proceeding homeward. The negro Farris, who did the shooting, addressed some insolence to Land. He replied to him, when the negro struck him across the face with a stick. Land then drew his pistol and fired at him, but missed his aim. The negro fled out of sight. He returned in a few minutes with a gun, and observing Land seated on his horse, fired upon him, killing him instantly. He then fled, but about 12 o'clock last night he came and surrendered himself to the Town Marshal. By order of the County Judge he was taken to the Boyle county jail this afternoon for safe-keeping, violence from the deceased's friends being apprehended. The deceased, Robert Land, bore the reputation of being a bad man when in liquor. He had killed several men, and was generally regarded as dangerous. The negro was also a bad character, coming from Madison county about three weeks ago. He had been in the workhouse during the greater part of that time, and was only released therefrom the day before the shooting. It is reported he too had killed his man previously.

Another Report of the Affair.

(Special Dispatch to the Courier-Journal.)

DANVILLE, May 28. -- Freeman Farris, who killed Robert Land at Lancaster yesterday evening, was brought here at 3 o'clock P.M. to-day by Town Marshal Singleton, Jailer Eason and others and committed to the Boyle county jail for safe-keeping. This was done by order of Judge M. H. Owsley, of the Eighth Judicial district, because of reasonable apprehension that Land's friends and the indignant citizens would assemble and hang Farris. The murder was a foul one, and the particulars are about as follows: Land, who was a good citizen and a peaceable man, was in Lancaster yesterday, and had started toward his home, about ten miles in the country, out the Sugar-creek pike. He had been drinking a little during the day, and when he reached the edge of town, he stopped and engaged in a conversation with a colored man, who was trying to persuade him to go on home, when Farris came up and advised the colored man to let the son of a --- go where he pleased. Land made some appropriate reply to this suggestion, when Farris struck him violently over the head with a stick. Land retorted by shooting at his antagonist with a pistol, the shot not taking effect. Farris then ran to a negro cabin about fifty yards distant, and seizing a musket returned and shot Land, the latter falling from his horse and dying in twenty minutes. Farris immediately fled, but probably knowing that his chances for escape were rather slim, returned and surrendered to the officers last night about twelve o'clock.

Farris is a mulatto about twenty-five years old. He was raised and formerly owned by Charles Gentry, of Madison county, and has made a record as a desperado, Robert Land being his fourth victim. He had escaped from the work-house, where he was serving a term for a misdemeanor, at the time he killed Land. [1]


[May 29, 1878] -

A man named Land was shot and instantly killed by a negro at Lancaster last night. The difficulty originated over a negro prostitute. The negro had not been arrested at last accounts, but he is thought to have been justifiable. [2]


[May 31, 1878] -


The negro Harris, who shot Land in Lancaster last Monday, has taken lodging in our town [Danville] with Judge L. Minor. [3]


[May 31, 1878] -


Uneasy lest Richmond should keep to the front, Lancaster has had another killing to report; a case so ugly, too, that the prisoner was removed to Danville to escape a possible visit from Judge Lynch. The victim was a popular citizen of our county, Robert Land. The murderer is a negro man named Freeman Farris. The place was in Logan Town, an adjacent village of unbleached Americans, on the direct highway to Land's home in the county. The circumstances are not in shape to bring out yet, but will appear on trial. Suffice is that Land, who was in liquor, made some thoughtless interference in a noisy difficulty among a group of colored people as he passed by on horseback, and was deliberately shot dead by Farris. The citizens of the locality give the affair so unpardonable a version that matters look black indeed. Judge Grinnan was soon on the spot, and summoned an inquest. A messenger was sent to prepare the wife, and when the body was conveyed to her after midnight, the frenzied woman met the group two miles this side of her home, with a babe in her arms, and her clothes dripping with water from the creek she had forded! [4]


[June 7, 1878] -


On Sunday night there was a grand Ku-klux alarm created here by the galloping and dashing about of unknown men. The panic spread to Danville, where our latest murderer, Freeman Farris, is confined. Bells were rung down there, and the citizens ordered to arms. But the lovers of the tragic were not gratified, and nothing came of it. [5]


[June 7, 1878] -


On Sunday night last, about 12 o'clock, Judge Minor received intelligence that a mob was en route for town in order to demand the body of Freeman Farris, the negro who shot Mr. Land, in Garrard, last week. The Judge immediately sounded the clarion notes of alarm, which had the effect of hastily calling forth Mr. Samuel Harding, corporal of the town guards. Placing himself at the head of this ever-ready squad, conspicuous in whose ranks were seen the countenances of Major Lucas and Captain McKee, jubilant with the idea of expected combat, he unweariedly kept vigil until daylight put an end to all hopes of an attack. The negro was removed to Lexington for safe keeping on Tuesday morning. [6]


[August 30, 1878] -


For the sake of convenience, the caption of my letter is as usual; but I write this week from Mt. Vernon, with as many home items attached as may have followed me into this quiet retreat. The trial of Freeman Farris, colored, for the murder of Robert Land, white, was in progress when your last issue went to press. An intelligent jury was at last impannelled, and the case soon wrote its record. The defense had no case at all. It was said, however, that the Attorneys made exceedingly creditable efforts. Geo. W. Dunlap, Jr., opened the argument, and was succeeded by W. O. Bradley, for the Commonwealth. This gentleman, with the ready grace for which he is conspicuous, began with a neatly-tuned compliment to Attorneys Dunlap, father and son, in which he likened the former to a sturdy oak that has borne the storms of many legal winters, and the latter, to the acorn dropped in fruitful soil, which has sprung up in vigorous strength to shield the withering branch of the parent tree. The prosecution throughout was heavy and telling, and the verdict when brought in was to the effect that "We, the jury, find the prisoner guilty of murder in the first degree, and fix his punishment at death." Such unusual  words at the Garrard bar fell with something of a shock upon all save the prisoner himself, who is either a fiend-like specimen of humanity, or who prides himself in the stoical visage of a Sioux Indian. Ugly stories are told of how he went to his cell and sat down to a jovial game of cards, reviling through the grating his wailing mother and sisters. The sentence had not been passed when I left the city, but a genuine execution seems, at last, inevitable in our community. [7]


[September 6, 1878] -


Freeman Farris, the condemned criminal, (whose sentence as delivered by Judge Owsley is appended) is greatly exercised because the authorities forbid his marriage to the dusky object of his dark affections. Says he cannot die happy without this panacea of "two souls with but a single thought." His execution is fixed for the 31st day of October. His manner has continued defiant and ironical. It is said that this negro boasts of having killed a number of men, and he is strongly suspected of having murdered Luke O'Gara, the Irishman whose remains were found in a ditch near Paint Lick some months ago. [8]


[September 6, 1878] -


The following death sentence was pronounced on Friday by Judge Owsley, and speaks for itself the merciful pity which accompanies justice in the human heart:-- "Freeman Farris, you were indicted in the Garrard Circuit Court for murder -- the killing of Robert Land. Being unable to employ counsel, the Court appointed four gentlemen of ability to defend you. They performed their duty admirably, leaving nothing undone which gentlemen of the highest capacity in their profession could accomplish in your behalf. The jury gave your case a patient and faithful hearing, and, upon due consideration, thought it right to find you guilty of murder, and fix your punishment at death. Have you any legal cause to show why the judgment of the Court shall not be pronounced against you?" Prisoner replied that he had committed an act of self-defense. Court then responded that that was a matter for the jury to determine, and pronounced the following sentence: "The communities throughout this part of the State have of late been thoroughly aroused to the necessity of giving protection to human life, by a more faithful and certain execution of the laws. The great insecurity to human life heretofore existing in this State, resulting from the acquittal of murderers upon defences oftentimes the most trivial and worthless, caused human life to become less valuable in the estimation of many even than property, and a horse-thief was almost more certain than conviction than the most inexcusable murder. The terrible punishment inflicted by God upon the first murderer, and the brand of infamy which he ever afterward carried on his brow, published his crime wherever he went, and caused all men to shun him. The denunciation, 'Thou shalt not kill,' thundered from Sinai -- the terrors of a guilty conscience -- all seem to have failed to impress mankind with the true value of human life, and the high estimate in which it is held by the Great Ruler of the Universe. Certain and public conviction and execution of the guilty seem the only sure means of deterring guilty criminals from the perpetration of outrageous crimes. You are now brought face to face with death; not suddenly, as you took the life of another, but with ample time for reflection. You now understand how fearful a thing it is to die. I am sure if you had had the experience through which you are now passing before you fired the fatal shot, you would have withheld your hand. The outside world are now forced to witness and think upon your fate; and if they can only be made to know that their punishment, under similar circumstances, will be as certain, as speedy, and as complete as yours, it will be a lesson of great benefit to mankind. The object of the law in your punishment is not for vengeance, but for safety in deterring others from the commission of like offenses. I hope and trust you will make good use of the time given you to make such preparation for death as will enable you to escape a more terrible sentence from an infinitely higher power than myself -- eternal punishment in the world to come. I implore you that you honestly and sincerely repent, and get forgiveness for this great sin, and all others which you may have committed before --- it is everlastingly too late. Going through the mere form of a change for the better may deceive, but can never save you from the just consequences of your acts. You must acknowledge in your heart the great offenses you have committed before God and man, and fully admit and recognize them as such, before you can hope to secure pardon. If you are to spend the time allotted you in railing at the hard (and, as you may regard it, unjust) fate which has befallen you, and thinking only of your own personal hardship, without truly and sincerely acknowledging the great sinfulness of your own conduct, I fear you will lose your immortal soul at the same time your body is destroyed. Our Savior is ever kind, loving and forgiving. He suffered an ignominious and painful death for us all. He is willing and able to save to the uttermost all those who sincerely and truthfully call upon His name. He stretched forth loving hands to the thief upon the cross, and gladdened his last moments with assurances of safety in another world. With like faith you may obtain a similar forgiveness. God grant that you may and will. Now, in pursuance of the verdict of the jury, it is the judgment of the Court that you be removed from this Court-house to the jail of Garrard county, there to be safely confined and kept until Thursday, the 31st day of October, 1878, on which day, between the hours of sunrise and sunset, the Sheriff of Garrard county will proceed with you to a place to be designated hereafter, and there hung by the neck until dead. And may the Lord have mercy on you." [8 ibid]


[September 6, 1878] -

GARRARD NEWS: Freeman Farris, confined in our jail under sentence of death, was to have been married last Monday to one Mary Ann Smith, a colored woman of this place, but Jailer Dillion, suspecting that this might be a plan for the prisoner's escape, would not give his consent to the nuptials, and Freeman must end his days in single blessedness. [9]


[October 4, 1878] -

On approaching the third [cell], that of the condemned criminal, Farris, the Jailer called, "Freeman!" "Yes, sir," promptly came the response, and it was with novel sensations that we advanced to meet face to face a man about whose neck the rope of justice was virtually flung. "Here are some ladies and gentlemen to see you," said the jailer. "All right, sir," said Farris, as he stood up against the iron bars that permitted a full view of two-thirds of his figure. He greeted us politely, and seemed grateful for any diversion. A small Testament, pencil, paper and one or two empty vials were thrust between the bars. As to the man himself, I cannot say just what I expected to see; certainly not what I did see. A youthful, lithe, robust frame; clear, smooth yellow complexion; bright, restless brown eyes that might under favorable circumstances express the nobler emotions of the human soul. Whatever the misguided career of this man, it is evident that the warped impulses of his nature were meant for better things than communism and murder. I was not sufficiently familiar with the physiognomy of criminals to estimate his frame of mind. His jailer says that he is a desperate man, that he sometimes plays the hypocrite by loud singing and praying and sometimes the bravado, by loud patting and singing. To me his countenance indicated a restlessness that the frequent gleam of his white teeth could not coax into genuine cheerfulness. He talked freely; said he could read and write, and answered all questions readily. I asked what caused two scars on his forehead that resembled burns. Flushing a little, he stroked his forehead with a natural gesture, but looked away as he said, "Oh, fighting a little -- I got them at Lexington." I told him that his counsel would go to Frankfort on Monday to see what they could do for him, but forebore to hold out a hope of pardon. Dr. Hays and Elder Gibson had visited him on the preceding Sunday and administered the consolations of religion. For the next two days his mood was apparently meditative. Four more weeks are allotted to him, according to his sentence. [10]


[October 11, 1878] -


Freeman Farris, the condemned criminal in our jail, is lately an object of public interest. On Monday, the 30th ult., he was discovered in the act of breaking jail by means of a drill and a file. Precautions were taken to secure him in future, and nothing occurred to excite notice until Saturday afternoon. He was then missed, and it was found that at 11 o'clock in the morning, he had quietly walked out of his cell and out of the hall door which happened to be left open. How the new Republican Jailer felt about this untoward incident does not appear. During the afternoon young Tommie White went to the Academy to look after matters there, and noticed the door of the coal-house ajar. Upon investigation Freeman Farris was revealed skulking from justice. Without appearing to identify him White walked away, entered the school-room, passed on through instead of giving the alarm, and quietly notified the authorities of his discovery. The bold refugee was recaptured, handcuffed and manacled in a new cell. About dark the Jailer's wife heard the noise of a file. In a few minutes he was visited, but all seemed serene. After an interval she again heard the grating sound and this time she became more importunate. The men went again to the cell, asked Farris what he was doing and where were his wristlets? Holding up his arms the handcuffs appeared intact. But upon a more minute examination it was found that the bracelets were loose and the prisoner hd already begun to saw an iron bar. Two small saws were found in his shoes. He was again securely fastened. Next morning he had filed loose again. At last a special pair of anklets and wristlets were forged for him, and he is thus far safe. By the aid of a screw he had unlocked the handcuffs. His fellow-prisoners had furnished the utensils, and had at times relieved him of them, when footsteps approached. One side of the cell communicates with the common receptacle for prisoners and the transmission was easy. Thus the desperate state of the man Farris is revealed, and he does not now pretend to be interested in preachers who visit him. [11]


[October 17, 1878] -


Matters and Things about the Capital of Garrard -- Desperation of a Man Condemned to Death -- Schools, Churches, &c.

(Correspondence of the Courier Journal.)

LANCASTER, KY., Oct. 15. -- In a few days, unless the august tribunal at Frankfort reverses the decision of the lower court, we shall have a chapter of capital punishment for you. Freeman Farris, a young mulatto, who shot and killed one Robert Land, white, in the early summer days, is now lying in an iron cell in the Garrard jail, under sentence of death. George W. Dunlap, Jr., one of the counsel appointed by the court to defend the prisoner, argued the case before the Court of Appeals, hoping to commute the penalty to manslaughter. Meanwhile the prisoner is growing daily more desperate. Once he escaped from the jail and was found a few hours later, hiding in a coal-house. Three times he has filed his manacles apart, and twice severed the iron bars of his cell. His facilities for concealing saws, files, and knives have been wonderful, unless aided by the other prisoners, which is probable. His latest exploit was to dash his breakfast basin at the new Republican Jailer and shatter the vessel to atoms. Such measures require harsh remedies. The prevailing opinion, or rather superstition, is that so persevering a man will at last succeed in fleeing justice. [12]


[October 25, 1878] -

We hope while the Court of Appeals has its hand in, that it will also grant a new trial to Freeman Farris, who is under sentence of death for the murder of Mr. Land. His hanging will do not good further than rid the country of a very bad character, for his fate will not deter a single man from the commission of a like crime. The hanging of a poor negro amounts to nothing so long as white men are allowed to escape the penalties of the law. A white desperado convicted and hung by the neck till he is dead will do more to put a stop to crime than the hanging of fifty negroes, combined. [13]


[November 1, 1878] -


Thursday was the day appointed for the execution of Freeman Farris, now well known to the public. Until the Court of Appeals takes some action the case remains in statu quo. Doubtless the old lady who said she would walk twenty miles to see the hanging will not readily recover from the disappointment. [14]


[December 3, 1878] -

Farris v. Commonwealth

Court of Appeals of Kentucky

December 3, 1878, Decided

77 Ky. 362 * | 1878 Ky. LEXIS 83 ** | 14 Bush 362


Disposition: Reversed and remanded with direction to grant a new trial.


1. A new trial ought to be granted where there are strong probable grounds to believe that the justice of the case has not been fairly and fully tried, or that the verdict is clearly contrary to the evidence. (Mahan v. Jane, 2 Bibb, 33.)

2. The court makes it the duty of the court to give the whole law applicable to the case, whether asked for or not.

Instruction A, asked for by defendant's counsel, as to reasonable doubt, ought to have been given. (1 Met. 376.)

3. In a sudden quarrel, where both parties strike in heat of blood, it is immaterial by whom the first blow was struck. In such a case the killing is manslaughter. (Wharton's Am. Crim. Law, pp. 188 to 192, 197, 185, 180, 179; Nichols v. Commonwealth, 11 Bush, 586.)

4. The court erred in permitting Commonwealth's attorney to argue before the jury matters of law not embraced in the instructions. (Central Law Journal, Sept. 13, 1878, p. 208.)


1. The use of the word "then" in instruction No. 2 was improper-- "Unless he had reasonable grounds [**2]  to believe it to be necessary to protect himself from death or great bodily harm then about to be inflicted," etc.

2. Instruction No. 3, that malice might be implied, etc., was improper.

Malice should be proved like any other fact. (Shannahan v. Commonwealth, 8 Bush, 464.)

3. Instruction No. 4, defining the word "aforethought" as a "predetermination to kill, however suddenly and recently formed," was improper. (Donnellan v. Commonwealth, 7 Bush, 679.)

4. Instruction "A," asked by defendant's counsel as to reasonable doubt, ought to have been given. (Payne v. Commonwealth, 1 Met. 376.)

5. The attorney for the Commonwealth was improperly permitted to argue, before the jury, matter of law not embraced in the instructions. (Terrell v. Commonwealth, 13 Bush, 255.)

6. It was the duty of the court to exclude the statements of the witness Miller that "Humber remarked, Watch Freeman Farris knock that man down,'" whether objected to or not. (Criminal Code, sec. 340.)

7. The defendant was not arraigned and did not waive arraignment as shown by his affidavit, and therefore the court erred in refusing to grant him a new trial or to go behind the entry made by [**3]  the clerk, that defendant "waived an arraignment and plead not guilty," to ascertain whether the entry was true or not.

8. The court also erred in allowing prosecuting attorney to talk with witnesses after they had been sworn and put under rule.


1. The question raised as to the defendant having waived arraignment and making no plea is out of the case, because the record and bill of exceptions both contradict it.

2. No prejudice to the rights of defendant is shown to have resulted from the conversation had by the Commonwealth's attorney with the witness.

3. The evidence of Miller was admissible, but if not admissible it was not objected to, and therefore no question can be raised in this court in reference to it.

4. Defendant waived any right he had to object to the argument made by the Commonwealth's attorney before the jury by not asking the court to instruct the jury, as suggested by the court.

5. The instructions are what this court has approved in Berry v. Commonwealth, 10 Bush, 15. And as to "malice," in Kriel v. Commonwealth, 5 Bush, 362, and Nichols v. Commonwealth, 11 Bush, 582. What will reduce [**4]  to manslaughter, 11 Bush, 586; Terrell v. Commonwealth, 13 Bush, 246; Luby v. Commonwealth, 12 Bush, 7.


1. Instruction A was properly refused because it fails to point out the facts necessary to constitute guilt, and because No. 10 embraces all the law on the subject, taken in connection with the other instructions.

2. The mere fact that the attorney for the Commonwealth was permitted to converse with the witness after he was sworn was not improper. Section 62 of the Criminal Code only refers to examining trials; section 601, Civil Code, to civil trials.

3. The orders of the court show that the prisoner was arraigned and pleaded not guilty. This is conclusive of the question.

4. The evidence of Miller as to the statements of Humber was competent, as showing a preconcerted arrangement between Farris and Humber. But if not competent it was not objected to, and can not now be complained of.

5. What the Commonwealth's attorney said in his argument before the jury now objected to was argument, and what he had a right to say, because what he said was the law. 


Appellant was convicted of the murder of Robert Land, and his punishment fixed by the jury at death. From that verdict and the sentence of the court thereon he appeals.

On the 27th day of May, 1878, near the town of Lancaster, Robert Land, a white man, very much intoxicated, had a difficulty with some negroes; and while he was attempting to draw his pistol to shoot one of them, and being held by a negro named Leavell, the appellant, a colored man, approached Land and said to Leavell, "Turn the God damned son of a bitch loose; let him go to hell." To this Land said, "Are you talking to me, you son of a bitch?" Appellant replied, "Yes," when Land turned toward him and drew or attempted to draw a pistol. Appellant struck him with a small walking-cane and ran, and as he did so Land shot at him without hitting him, and, according to some of the witnesses, threw a rock. Appellant went some seventy-five yards down the  [*366]  road to the house of another negro and said, "Give me your gun, quick; I want to shoot a white man up the road who shot at me," and, having obtained the gun, ran back in the direction of where he left Land, and when within some fifty yards [**6]  of the place he said, "God damn you, where are you?" and fired upon Land and shot him through the body, from which he died in twenty minutes. While appellant was gone for the gun Leavell had succeeded in putting Land on his horse, with a view of getting him to go home. Some of the witnesses say that when appellant came back with the gun and called out to Land, "God damn you, where are you?" Land turned toward him and presented his pistol. The evidence is that appellant was about two minutes in getting the gun and returning to the vicinity of the difficulty. The bill of evidence does not disclose whether there had been any previous ill feeling between appellant and Land, or whether, in fact, they had ever before met. Quite a number of negroes witnessed the killing, but it appears that no white person other than Land was present.

Objection is made to the first, second, and fourth instructions given for the Commonwealth. They undertake, among other things, to give the jury the law of self-defense as applicable to the facts of this case. They appear to be much more favorable to appellant than the law will justify. The first tells the jury that they must acquit if they find that appellant [**7]  "believed and had reasonable grounds to believe that he was in imminent danger of loss of life or of suffering great bodily harm at the hands of said Land." They were not told, as they should have been, that the right to kill was dependent upon the further fact that there were no other apparently safe means of escape from the then impending danger.

The instructions given at the instance of counsel for appellant are as favorable to him as the law will permit, and  [*367]  give to him the full benefit of the law of self-defense and of manslaughter.

Nor do we think the court erred in refusing to give instruction "A" asked for by appellant's counsel. The court had already told the jury what facts must be established by evidence, that excluded every reasonable doubt, before they could convict, and these instructions were so drawn as to make it clear to the most ordinary mind that they should not convict if they had a reasonable doubt as to whether the evidence established any one of these facts.

Complaint is made that counsel for the Commonwealth was permitted to argue to the jury the law of manslaughter, as stated by himself, and not as embraced in the instructions. The bill of exceptions [**8]  says that these statements were made in response to a statement by counsel for appellant, as to his understanding of the law upon the same subject. It appears that counsel for appellant objected, privately to the judge, to the statement of the law by counsel for the Commonwealth, and that the judge said he thought the argument legitimate, but that if counsel desired, he would tell the jury that they must be governed entirely by the law as given them in the written instructions. To this suggestion from the court appellant's counsel made no response, and nothing was said to the jury about the matter by the court. We are not prepared to say that the argument of counsel for the Commonwealth, under the circumstances, was improper, but if it was, we are of the opinion that no sufficient objection was made and preserved.

It is also objected that there was no arraignment of the appellant. The affidavit of appellant appears to that fact, but the bill of evidence shows that an arraignment was waived, and that appellant pleaded not guilty. The record is conclusive of this point, and prevents any inquiry into its correctness.

It does not appear that appellant could have been prejudiced by the [**9]  court permitting counsel for Commonwealth to  [*368]  talk with the witnesses after they were sworn and separated, as the same permission was granted to and exercised by counsel for appellant. The Commonwealth's witness talked to by its counsel was afterward talked with by counsel for appellant, and introduced in his behalf.

As to whether appellant was guilty of murder or manslaughter, or whether he was guilty of either offense, was a question exclusively for the jury, upon proper instructions as to the law given by the court. We have no power to inquire whether the court erred in overruling a motion for a new trial, as we have decided in Terrell v. Commonwealth, 13 Bush; Kennedy v. Commonwealth, 77 Ky. 340, 14 Bush 340, and in Frazier v. Commonwealth, MS. opinion, Nov. 21, 1878.

The third instruction, given at the instance of the counsel for the Commonwealth, is complained of by counsel for appellant upon the ground that without modification it was calculated to and probably did mislead the jury. It reads:

"Malice is implied by the law from any cruel and unnecessary act done by one person to another, and from the deliberate and unnecessary use of a deadly weapon. [**10]"

A careful consideration of this instruction, when applied to the facts of this case, has led us to the conclusion that the objection to it is well taken. The proposition as stated does not appear to accord with the reason and philosophy of the law as found in our statutes and Code, nor, in fact, to have been approved by the later adjudications in other states.

Punishable homicides, under the General Statutes of this state, are described and provided for as follows:

"If any person be guilty of willful murder he shall be punished with death, or confinement in the penitentiary for life, in the discretion of the jury."

"Whoever shall be guilty of voluntary manslaughter shall be confined in the penitentiary not less than two nor more than twenty-one years."

 [*369]  Section 180 of the Criminal Code provides, that "Issues of law shall be tried by the court; issues of fact in prosecutions, for offenses of which the punishment is limited to a fine of $ 16, shall be tried by the court. All other issues of fact shall be tried by a jury."

It is further provided in sections 225, 238, 239, and 258,

That the court must instruct the jury in writing on the law applicable to the case;

 [**11]  That, if there be a reasonable doubt of the defendant being proved guilty he is entitled to an acquittal;

That, if there is a reasonable doubt of the degree of the offense committed, the conviction shall be of the lower degree;

That, when there is a verdict of "guilty," or "for the Commonwealth," the jury shall fix the degree of punishment to be inflicted, unless it be fixed by law.

In reference to the burden of proof the correct rule is well stated in Wharton's American Criminal Law, section 707, as follows:

"When the defendant relies on no separate, distinct, and independent fact, but confines his defense to the original transaction on which the charge is founded, with its accompanying circumstances, the burden continues throughout with the prosecution. Each item of the charge must be proved in the same manner as if the whole issue rested on it." (Payne v. Commonwealth, 58 Ky. 370, 1 Met. 370.)

When this instruction is tested by these rules of law, applied to the facts as already stated, and considered in connection with other instructions given, we readily see that it most probably misled the jury to the prejudice of the substantial rights of the appellant.  [**12]  The jury were told in the sixth instruction that if they believed the killing was done, not in malice nor in necessary self-defense, but in sudden heat and passion, they must find the accused guilty of manslaughter. These two conflicting instructions told the jury, in effect, that  [*370]  if the killing was cruel and unnecessary, and done with a deadly weapon, the law implied the existence of malice, and that therefore the killing was willful murder; although they might believe that it was done in sudden heat and passion or in self-defense. An unnecessary or a cruel killing is not always willful murder. If from all the facts and circumstances there was an apparent necessity that the accused should take the life of his antagonist in order to preserve himself from death or great bodily harm, then about to be inflicted, he is justified on the ground of self-defense; and a killing with a deadly weapon will be excusable when done in apparently necessary self-defense, or may be manslaughter when done in sudden heat and passion. This conflict could have been avoided by telling the jury that they might infer malice from the circumstances of the killing, but such an instruction would [**13]  be objectionable because of the undue prominence that would be given to the fact of killing with a deadly weapon.

When it is considered that, in testing instructions, every deduction which the jury might have been authorized to make from the testimony must be assumed as a fact proved, it will be more readily seen how great is the probability that the instruction complained of confused and misled the jury.

Suppose, for instance, the jury to have determined that Land first assaulted and attempted, without provocation, to shoot and kill appellant, and that, in sudden heat of passion, produced by the unprovoked and deadly assault, appellant, without malice, and not in self-defense, obtained the gun and killed Land? In that case appellant was guilty only of manslaughter, and the jury must have so found, but for the instruction that malice was implied, by law, from the fact that the killing was done with a deadly weapon. The question of malice or no malice is thus taken from the jury, and although they have found all the necessary elements to reduce the killing to manslaughter, they must either disregard the  [*371]  third instruction or find the accused guilty of murder. The effect [**14]  of the two instructions was to destroy each other, and to deprive appellant of the benefit of the law applicable both to manslaughter and to self-defense, and to reduce the jury to the necessity of finding appellant guilty of willful murder, or to return a verdict of not guilty.

Malice is necessarily a constituent element in the crime of murder, and must be established by evidence to the satisfaction of the jury, as any other fact necessary to make out the offense, and is no more within the province of the court to determine than the fact of death, or the character of the weapon used to inflict it. The shadowy boundary line between the province of the court and the province of the jury, that existed when the courts were permitted to charge the jury orally, and to comment on the weight of evidence, has been sharply drawn and well defined by the provisions of the Criminal Code, already cited. Each is an absolute sovereign within its own domain, with no disputed territory, and no questionable powers. (Brady v. Commonwealth, 74 Ky. 282, 11 Bush 282.)

Mr. Wharton, in his work on Criminal Law, section 712, 7th edition, says, "The doctrine that malice and intent are presumptions [**15]  of law to be inferred from the mere act of killing belongs, even if correct, to purely speculative jurisprudence, and can not be applied to any case that can possibly arise before the courts;" and in the second volume of his work on Evidence, book 3, chapter 14, will be found a full discussion of this question.

Mr. Bishop, in his Commentaries on Criminal Law, 6th edition, section 673, says that according to the analogies of the modern law of evidence and the better procedure before juries, the existence of malice is to be deduced by the jury from the facts put in evidence.

Mr. Proffatt, in his treatise on Trial by Jury, section 331, says, "Of late the tendency is to hold the prosecution to a  [*372]  strict proof of malice, and the common-law doctrine of implied malice is disapproved." (Stokes v. People, 53 N.Y. 164.)

In Commonwealth v. Hawkins, 5 Gray 446, decided 1855, Chief Justice Shaw delivering the opinion, it is said that when all the circumstances attending the homicide were fully shown by the evidence, as in this case, the burden was on the Commonwealth to prove the whole case, and that the jury must be satisfied, upon all the evidence, beyond [**16] a reasonable doubt, of the existence of malice.

According to this construction of the cases of Commonwealth v. York, 9 Metcalf, and of Commonwealth v. Webster, 5 Cushing, so often cited by the text-writers in support of the proposition that malice is implied by law from the existence of certain facts, they are not authority for any such instruction when all the circumstances attending the killing are known.

In York's case the fact of killing was established, to a great extent, by circumstantial evidence, and entirely so in the Webster case. The opinion in each of these three cases was delivered by Chief Justice Shaw, and the Hawkins case he expressly distinguishes from the York case. It is also to be observed that in the York and Webster cases the question decided was simply whether the doctrine of reasonable doubt could be applied, in determining by the jury, the existence of malice, or whether, the killing being established to their satisfaction, there was not a prima facie case for the Commonwealth, and the burden of proving the absence of malice, or to prove justification, shifted to the accused. We have already seen that under the rule in this state, and which appears now [**17]  to be very generally adopted, the burden of proof never shifts from the Commonwealth to the accused when the plea is simply "not guilty," but remains upon the prosecution throughout. So, considering that the Massachusetts cases are authority then for the position that the proof of killing, nothing else appearing,  [*373]  makes it incumbent upon the accused to prove the absence of malice, it is clear that they are not authority, even in that state, for the application of that rule where all the circumstances of the killing are known, and are not authority in this state, upon this point in any case, if for no other reason than that they are in conflict with the well-established rule that requires the burden of proof to remain with the prosecution.

Chief Justice Redfield, in State v. McDonnell, 32 Vt. 491, after citing 1 Hawkins's P. C. 82, chap. 131, sec. 32, to the effect "that whenever it appears that a man killed another it shall be intended, prima facie, that he did it maliciously, unless he can make out the contrary, by showing that he did it on sudden provocation," etc., says: "The same general proposition is substantially repeated in all the subsequent treatises [**18]  and reports where the question has arisen; but it seems to have been done without much examination, and one might be allowed to question its application to the mere act of killing, since, being but a presumption of fact, in the absence of all evidence in regard to the mode of death, the presumption of innocence must be allowed to prevail over that of malice.

. . . This is undoubtedly one of those points where the jury should be expected to judge for themselves, as it is a subject which they understand as well as the court, since it has reference to matter of fact, rather than of law."

In Madden v. State, 1 Kan. 340, it is held that the presumption that the accused intended the natural and probable consequences of his own acts, is not one of law, to be applied by the court, but of fact, to be weighed by the jury. (See also, to the same effect, Coffee v. The State, 11 Tenn. 282, 3 Yer. 283; U.S. v. Mingo, 2 Cur. C. C. 1; Maher v. The People, 10 Mich. 212.)

In Greenleaf on Evidence, vol 1, sec. 18, it is said, "The intent to murder is conclusively inferred from the deliberate use of a deadly weapon." Commenting on this the court, in Clem v. State, 31 Ind. 480, [**19]  say that it is not supported by the  [*374]  authorities cited by Mr. Greenleaf, and is at variance with uniform and well-established principles.

In Smith v. The Commonwealth, 62 Ky. 224, 1 Duv. 224, opinion by Judge Robertson, the court held this instruction erroneous, to wit, "If homicide be committed by a deadly weapon, in the previous possession of the slayer, the law implies malice in the perpetrator." The court say of it, "As given without qualification as to how far, or for what purpose, the weapon happened in the perpetrator's possession, or whether, having it for a lawful purpose, he used it in self-defense, or under sudden and provoked heat of passion, this instruction was certainly wrong and misleading."

It might well be said that this amounted to holding, inferentially and argumentatively, that the instruction would be good if given with the qualifications indicated. But two things are to be considered in this connection: First, the point that the law implies malice does not appear to have received the attention of the court; the objections pointed out being sufficient to destroy the instruction, the court was content to stop them. Secondly, the improbability [**20]  of being able to draft an instruction containing all the suggested qualifications and exceptions mentioned that might not mislead the jury to the prejudice of the accused. Instructions should be so drafted that they may be taken and applied in their literal sense, for the jurors, unlearned in the law, are not required to be able to do more than to make a literal application to the particular case of the law given them. The constitution of the state guarantees to every citizen the right openly to carry arms, and the possession of them should be presumed to be for a lawful purpose. That presumption existing, the court would then be necessitated to tell the jury what would be an unlawful purpose, and having done that there would still remain the necessity for telling them that, although they might believe the accused had the deadly weapon in possession for an unlawful  [*375]  purpose, yet that, under certain circumstances, he might use it in self-defense, or if used in the sudden heat of passion the killing would not necessarily be willful murder. When the instruction should be extended so as to clearly define to the jury all the circumstances which would make the killing justifiable,  [**21]  because done in self-defense, or would reduce it to manslaughter, the chances are that its necessary prolixity would be more apt to mislead and confuse the jury and defeat the ends of justice than if no instruction were given on the point.

Judge Hardin, delivering the opinion of the court in Donnellan v. Commonwealth, 70 Ky. 676, 7 Bush 676, said: "The instruction to the effect that in any case the use of a deadly weapon, not in necessary self-defense, whereby death ensues, will constitute murder, was also erroneous. Such use of a deadly weapon is evidence of malice, and may be an essential ingredient in the proof of murder in many cases; but it does not follow that every homicide committed by the use of a deadly weapon, and not in necessary self-defense, is murder."

In Shannahan v. Commonwealth, 71 Ky. 463, 8 Bush 463, this court said: "Malice, express or implied, must be proved in order to constitute the crime of murder, and in the absence of this proof no conviction can be had for such an offense; and evidence as to the condition of the accused at the time of the killing, whether drunk or sober, should be permitted to go to the jury, in connection with [**22]  other facts, in determining the question of malice."

It appears that the doctrine of implied malice had its origin at a time when the crime of murder was confined to the secret killing of another, and when the rules of evidence as now established were but little known. (4 Bl. Com. 194, 195.) Such appears to have been the class of cases to which the doctrine was first applied in Massachusetts and in several other states; but it appears that some of the American writers on the law of evidence, citing and approving these cases, have,  [*376]  by the use of general terms, extended their application to all homicides. In many of the cases cited in support of the proposition that the law implies malice from deliberate killing with a deadly weapon, it is seen on examination that the jury found by special verdict the facts and circumstances connected with the killing, and the court upon that finding determined whether there was malice. (The King v. Oneby, 2 Ld. Raym. 1485-1494.) But whatever the origin of the rule may be, we are convinced that it is entirely arbitrary, contrary to the reason and the analogies of the law of criminal procedure, both at common law and under [**23]  our statutes and Code.

Therefore, as the instruction complained of tells the jury that the law implies malice from certain acts, it is erroneous. Wherever, in case of charge of homicide, there is evidence before the jury from which they might conclude that the killing was done in necessary self-defense or in the sudden heat of passion, such an instruction may be fatally misleading; and while there may be cases where there is no such evidence, and in which such an instruction could not mislead, it should not be given in any case. If, in the entire absence of such evidence, from which the jury might acquit on the ground of self-defense, or might find a verdict of manslaughter, a similar instruction should be given, this court might not feel justified in reversing the judgment of the lower court for that reason alone; because the instruction was not prejudicial, it is safe to say that it can never serve to enlighten the jury, and ought in every case to be omitted.

As the judgment must be reversed for the reasons indicated, it is proper that we should notice the objection made by counsel for appellant to the statements of Miller and Best as to what Humber said when appellant approached [**24]  Land the first time. That testimony was purely hearsay, and should have been rejected, as we presume it would have been if exception had been properly taken by counsel for appellant. The bill of  [*377]  evidence, however, shows that no such objection was taken, and we must therefore infer that the attention of the court below was not called to it.

Wherefore the judgment is reversed, and cause remanded with direction to grant appellant a new trial, and for other proceedings consistent with this opinion. [15]


[December 6, 1878] -

ATTEMPT TO BREAK JAIL. -- A few nights ago our malcontents at the Heart of Mid Lothian again gave some trouble to the doughty Baillie Nicol Jarvie. Saws and files were found, and a bar of iron that had been sawn asunder. Freeman Farris, manacled and gyved, indignantly repels the charge of having been a ringleader this time. But he says saws he will be the guard never so watchful.

FREEMAN FARRIS. -- George W. Dunlap, Jr., naturally takes unto himself great unction in the reversal of the Freeman Farris case, it being his maiden effort before the august tribunal at Frankfort, and the case such a desperate one that all the wise heads tried to discourage his making the appeal. Upon reading the news he repaired at once to the heavily-ironed prisoner, followed by about twenty rejoicing citizens. The joy and gratitude of the criminal were genuine. Mr. Dunlap gave him some good advice as to his future decorum in prison, and left him for the night. [16]


[December 31, 1878] -

May 1878.  27th - John Corns stabbed Frank McAllister at Greenup. Freeman Farris (colored) shot Robert Land at Lancaster; drunken quarrel. [17]


[February 21, 1879] -

CIRCUIT COURT. -- Freeman Farris, who owes his neck to the Court of Appeals, has obtained a change of venue to Boyle county, and his trial is set for the 7th day of March. [18]


[February 28, 1879] -

CIRCUIT COURT. -- Will be convened on next Monday, 3rd proximo. There are eighty-two indictments on the docket, including the old well-known cases of Micajah Rowsey and C. C. Gillispie for murder and manslaughter, set for the second day of the term; the case of John Taylor charged with the murder of Mrs. Polly Bottom, for the third day; case of Freeman Farris, by change of venue from Garrard, for seventh day; McAfee et al vs. J. W. Finnell, from Mercer (Ku-klux case,) for fifth day. [19]


[March 10, 1879] -


(Special Dispatch to the Courier-Journal.)

DANVILLE, March 8. -- Freeman Farris, on the trial in the Boyle Circuit Court for the murder of Robert Land in May, 1878, was today found guilty of murder in the first degree, and his punishment fixed at imprisonment in the penitentiary for life. This murder was committed in Garrard county, and and on the first trial Farris was convicted and sentenced to be hung. The case was carried to the Court of Appeals and reversed, a change of venue to this county was granted, and the second trial concluded today with the result above stated. [20]


[March 14, 1879] -

DANVILLE COURT NOTES. -- Freeman Farris' new trial resulted in a verdict of guilty of murder in the first degree and a sentence for life to the Penitentiary. [21]


[March 14, 1879] -

COURT MATTERS. -- Quarterly Court here next Monday. Geo. W. Dunlap, Jr., argued the case of Freeman Farris in Danville on Thursday night before a crowded house. Verdict -- Penitentiary for life, instead of the former decree of hanging. [22]


[March 28, 1879] -

ANOTHER APPEAL. -- Freeman Farris, who killed Mr. Land, in Garrard, has again taken his case to the Court of Appeals, and has been sent to Louisville for safe keeping until he has a hearing before that tender hearted body. [23]


[June 3, 1879] -

Farris v. Commonwealth

Court of Appeals of Kentucky

June 3, 1879, Decided

10 Ky. Op. 309 * | 1879 Ky. LEXIS 192 **


Disposition: Judgment affirmed.

Counsel: G. W. Dunlap, W. D. Hopper, L. F. Hubble, for appellant.

Moss, for appellee.

Judges: Judge Hines.

Opinion by: Hines

 [*309]  Opinion by Judge Hines:

We are unable to discover any substantial error in the record. The instructions present the law of murder and manslaughter in so clear a manner that the jury, in our opinion, could not have been misled. When this was done it was the province of the jury alone to determine whether the offense was that of murder or of manslaughter. The court did not err in refusing to instruct the jury that "malice must be proven as any other fact." As we said in the opinion on the former appeal (77 Ky. 362, 14 Bush 362), the existence of malice must be determined by the jury as they determine any other fact, but it was not intimated that it should be singled out from the other facts and given undue prominence, as would have been the case if this instruction had been granted. The leading idea in that opinion is that "malice" is not an implication of law, but a matter of fact to be determined by the jury as any other element in the crime of murder. We are of the opinion, however,  [**2]  that the court did well in refusing to define the meaning of the term to the jury. The popular and the legal meaning of the term is so nearly the same that a  [*310]  definition would probably confuse rather than enlighten the jury. It will ultimately be found necessary, as has been the case with the term "reasonable doubt," to leave its meaning to be arrived at by the jury, unembarrassed by metaphysical definitions, which are, from the necessity of the case, more or less misleading. The attempt to define terms that the ordinary intelligence may reasonably be presumed to comprehend more often confuses than enlightens.

Judgment affirmed. [24]


[June 6, 1879] -

AFFIRMED. -- The Court of Appeals has affirmed the decision of the lower Court, so Freeman Farris, for the murder of Land, goes to the Penitentiary for life. [25]


[June 13, 1879] -

A LETTER WRITER. -- Freeman Farris, condemned for life to prison walls, writes a letter full of creditable good feeling to his former attorney, G. W. Dunlap, Jr., whose efforts in behalf of the convict were not unappreciated by their object. [26]


[May 14, 1880] -

A GOOD SHOT. -- Twenty convicts attempted to escape from the Penitentiary a few days ago by scaling the wall. Freeman Farris, the negro sent up for life from Garrard for the murder of Robt. Land, white, was the first to reach the top of the wall, when the guard sent a bullet through his brain killing him instantly. Two succeeded in getting out but were afterwards captured. [27]


[1] "Lancaster." The Courier Journal, Louisville, KY. May 29, 1878. Page 1.

[2] Excerpt from "Stanford." The Courier Journal, Louisville, KY. May 29, 1878. Page 1.

[3] Excerpt from "Boyle County News." The Interior Journal, Stanford, KY. May 31, 1878. Page 2. LOC.

[4] Excerpt from "Garrard County News." The Interior Journal, Stanford, KY. May 31, 1878. Page 3. LOC.

[5] Excerpt from "Garrard County News." The Interior Journal, Stanford, KY. June 7, 1878. Page 2. LOC.

[6] Excerpt from "Boyle County News." The Interior Journal, Stanford, KY. June 7, 1878. Page 3. LOC.

[7] Excerpt from "Garrard County News - Lancaster." The Interior Journal, Stanford, KY. August 30, 1878. Page 3. LOC.

[8] Excerpts from "Garrard County News." The Interior Journal, Stanford, KY. September 6, 1878. Page 3. LOC.

[9] Excerpt from "Kentucky News." The Courier Journal, Louisville, KY. September 6, 1878. Page 2.

[10] Excerpt from "Garrard County News." The Interior Journal, Stanford, KY. October 4, 1878. Page 2. LOC.

[11] Excerpt from "Garrard County News - Lancaster." The Interior Journal, Stanford, KY. October 11, 1878. Page 2. LOC.

[12] Excerpt from "Lancaster." The Courier Journal, Louisville, KY. October 17, 1878. Page 2.

[13] Excerpt from Column 2. The Interior Journal, Stanford, KY. October 25, 1878. Page 2. LOC.

[14] Excerpt from "Garrard County News - Lancaster." The Interior Journal, Stanford, KY. November 1, 1878. Page 2. LOC.

[15] Farris v. Commonwealth, 77 Ky. 362 (1878). Retrieved from LexisNexis Academic.

[16] Excerpt from "Garrard County News - Lancaster." The Interior Journal, Stanford, KY. December 6, 1878. Page 2. LOC.

[17] Excerpt from "Violent Deaths in Kentucky." Louisville Commercial, Louisville, KY. December 31, 1878. Reprinted by Kentucky Explorer magazine.

[18] Excerpt from "Garrard County." The Interior Journal, Stanford, KY. February 21, 1879. Page 2. LOC.

[19] Excerpt from "Boyle County." The Interior Journal, Stanford, KY. February 28, 1879. Page 2. LOC.

[20] "Danville, KY." The Courier Journal, Louisville, KY. March 10, 1879. Page 3.

[21] Excerpt from "Local Matters." The Interior Journal, Stanford, KY. March 14, 1879. Page 3. LOC.

[22] Excerpt from "Garrard County." The Interior Journal, Stanford, KY. March 14, 1879. Page 3. LOC.

[23] Excerpt from "Local Matters." The Interior Journal, Stanford, KY. March 28, 1879. Page 3. LOC.

[24] Farris v. Commonwealth10 Ky. Op. 309 (1879). Retrieved from LexisNexis Academic.

[25] Excerpt from "Local Matters." The Interior Journal, Stanford, KY. June 6, 1879. Page 3. LOC.

[26] Excerpt from "Garrard County." The Interior Journal, Stanford, KY. June 13, 1879. Page 2. LOC.

[27] Excerpt from "Local Matters." The Interior Journal, Stanford, KY. May 14, 1880. Page 3. LOC.


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