Previously:
[September 21, 1888] -
A man named Larkin Byrd, a miner at East Bernstadt, was shot and instantly killed near that place last Sunday afternoon by an Italian boy named Milis. Byrd, having become incensed against Milis from some cause, having previously breathed threats against the boy, sought him out at his boarding house and fired at him while the latter was making no hostile demonstrations, whereupon young Milis armed himself with a shot gun and advancing on his antagonist, emptied the contents of the gun into his abdomen. These are the post inquisitorial facts, the examining trial before Police Judge Baker not having been completed at this writing. [1]---
[September 28, 1888] -
The result of the examining trial of the parties charged with the killing of Larkin Byrd, as mentioned in my last, was that Henry Milis and John Bossee were held in the sum of $600 each to answer in the circuit court. Bossee was Milis' landlord and was armed and present when the killing was done. [2]---
[December 20, 1888] -
Miller, &c., v. Commonwealth.
COURT OF APPEALS OF KENTUCKY
89 Ky. 653; 10 S.W. 137; 1888 Ky. LEXIS 142
December 20, 1888, Decided
PRIOR HISTORY: [***1] APPEAL FROM LAUREL CIRCUIT COURT.
DISPOSITION: Reversed and remanded for a new trial.
COUNSEL: W. O. BRADLEY FOR APPELLANT.
1. The court should have granted a new trial, because the jury found their verdict by lot; and while this court has held in Redmon v. Commonwealth, 82 Ky. 334 (overruling P. & E. R. Co. v. Commonwealth, 80 Ky. 150), that it has no jurisdiction to reverse for such an error, it seems that there should be a reversal for any error prejudicial to the substantial rights of the defendant. (Amendment to section 340 of Civil Code.)
2. The court should have allowed the defendant to prove that he had advised the absent witnesses to remain in Kentucky.
3. The uncommunicated threats were admissible in evidence, as they were important for the purpose of determining whether or not the accused acted in self-defense. (Campbell v. People (16 Ill. 17), 61 Am. D., 50; Carroll v. State, 23 Ala. 28; Pitman v. State, 22 Ark., 354; State v. Sloan, 47 Mo. 604; State v. Keen, 50 Id., 357; Roberts v. State, 68 Ala. 156; State v. Turpie, 77 N. C., 473; Wharton's Hom., sec. 695; Horr & Thomp. Self-defense, 487, 521, note 574; Hart, Jr., v. Commonwealth, 8 Ky. Law Rep., 714; Wharton's Crim. [***2] Ev., sec. 757; Burns v. State, 49 Ala. 370; People v. Arnold, 15 Cal. 476; People v. Scroggins, 37 Id., 251; People v. Alvitre, 55 Id., 263; People v. Travis, 56 Id., 251; People v. Tampkin, 62 Id., 468; s. c., 24 Am. Rep., 455; Little v. State, 6 Bax., 491; Wiggins v. People, 93 U. S., 465.)
P. W. HARDIN, ATTORNEY-GENERAL, FOR APPELLEE.
Brief not in record.
JUDGES: CHIEF JUSTICE LEWIS.
OPINION BY: LEWIS
OPINION
[**137] [*654] CHIEF JUSTICE LEWIS DELIVERED THE OPINION OF THE COURT.
Henry Miller and John Bosse having been jointly indicted for the murder of Larkin Bird, and convicted of manslaughter, prosecute this appeal.
It appears the deceased, whose reputation was proved to have been that of a quarrelsome and dangerous man, had, a short time before getting to the place he was killed, drawn his pistol on three men and fired at another. Unless the result of the aimless wandering of a restless drunken man, for he was under the influence of liquor, there is nothing to satisfactorily show why the deceased stopped at the particular place he did, which was about one hundred and fifty yards from the dwelling-house of Bosse. The evidence is, that soon after getting there, he, being [***3] alone, commenced to fire his pistol, some of the shots, of which there were three or four, being fired in the air, or at random; one of them, as a witness states, was fired at his own hat, which he threw up for the purpose; another shot struck in the yard of Bosse, and, as his wife stated at the time, came near hitting her. There is also evidence he called the name of Bosse in a disrespectful manner. Immediately after his wife cried out she was near being struck, Bosse went into his house and got two guns and a pistol, and started with them towards the deceased, intending, as he testified, to give one of the guns to his son; but Miller took one [*655] of them, and together they approached the deceased, and when they got near to him, Bosse, as he states, presented his gun and commanded the deceased to lower his pistol, and, it being done, he then lowered his gun also. Either just before or after Miller and Bosse arrived, about which there is some conflict in the testimony, a man named Williams, who had previously been in company with the deceased, and was also offended at him, appeared and took his pistol from him, and, according to the testimony of Bosse and Miller, snapped it [***4] at him; but Williams' horses just at that time becoming frightened, he left the place in pursuit of [**138] them, and in a short time thereafter Miller shot and killed the deceased. No one was at the place when the shot was fired except Bosse, Miller and the deceased, though several witnesses testify they had a clear view of the parties at the time. The evidence is uncontradicted that the deceased, after the pistol was taken from him, still had a knife, the blade of which was open. Both Bosse and Miller testify that, when shot, the deceased was approaching Miller with his open knife, held in a threatening position, and making an effort, at the same time, to seize Miller's gun. They are corroborated by other witnesses as to the deceased having his knife opened and approaching Miller; but one or more witnesses stated the deceased was, at the time he was shot, making no movement or demonstration towards Miller.
Appellant, during the trial, offered to prove, and avowed the witness, if permitted to answer the questions propounded, would state the deceased told him the day before the homicide he intended to kill appellant, [*656] Miller, on sight; but there being no proof that [***5] or any other threat against him by the deceased was previously communicated to Miller, objection to the question was sustained, and it was not permitted to be answered. In the process of forming an opinion, in the absence of positive and convincing evidence as to what has been, as well as in conjecturing what will be, the conduct of a particular person in a given state of case, the first and most natural inquiry is, what motive had or has he for doing it? Thus, in determining, in the absence of eye-witnesses, or when the evidence is contradictory and uncertain, as to who of two persons began a conflict resulting in the death of one of them, it is not only material, but often of vital importance, to ascertain which one of them, if either, was actuated by motive of gain or revenge; and it is often sufficient to discredit the positive testimony of witnesses to show that a person charged with an offense had no motive for committing it, or a strong motive for not doing it.
In this case the guilt or innocence of Miller materially depends upon whether, at the time he shot, the deceased was advancing upon him with a drawn knife, and, consequently, whether he had reasonable grounds to believe, [***6] and did believe, he was then in danger of losing his life or suffering great bodily harm, or whether he shot wantonly and without legal excuse. In determining that question of fact, about which the contradictory testimony of the witnesses was calculated to create some doubt that might have been resolved against the accused, it seems to us it was entirely pertinent to show threats by the deceased [*657] against the accused; for if the former was possessed of a feeling of hatred towards the latter, and had formed a determination to take his life, the inference would be at least reasonable that he was the aggressor.
There is a distinction between the inquiry, whether the slayer of his fellow-man was induced to do the deed by a reasonable apprehension, founded upon threats made by the deceased, communicated and known to him, and the question of fact, whether the one or the other commenced the conflict; for in the latter case the inference the deceased began it may arise from the existence of his hatred and revenge, whether known to the other or not. The competency of such evidence has been expressly recognized by this court in Hart v. Commonwealth, 85 Ky. 77, 2 S.W. 673. [***7]
One of the witnesses made the following statement, obviously in answer to questions by the Commonwealth's Attorney: "My son was standing near me when the killing took place; he is going on twenty-one years of age; he is in Arkansas; he bought his own ticket to go; he worked under me and another man, and I was employed by the Star Coal Company, of which defendant, Bosse, is a member, and we paid him. He did not go away to keep from being a witness; he had been talking of going away for a year before the killing, and was waiting to make money to go on; he was a witness on the examining trial of this case."
The answers of the witness show that the Commonwealth's Attorney was persistent in his endeavor to show the witness had been, by bribery, or in some [*658] other improper way, induced by Bosse to leave the State to [**139] prevent his giving damaging testimony against himself and Miller; and although the witness protested his son left voluntarily, still the facts that Bosse was a member of the coal company, that Miller was an inmate of his family, and the father of the absent witness was his employe, all being got prominently before the jury, were calculated to induce the [***8] suspicion, if not belief, that the witness had been improperly induced to absent himself, because he would, if present, have testified to facts prejudicial to the defense. We, therefore, think the court erred in refusing to permit the witness Hammons to state, as he would have done, that "Bosse advised his son not to go, and that Kentucky was a better State than Arkansas."
For the errors indicated, which, we think, were prejudicial to the substantial rights of the defendants, the judgment as to both of them is reversed, and cause remanded for a new trial. [3]
---
[May 29, 1891] -
The following parties have been sentenced to the penitentiary this week: John Bossey for killing Larkin Bird, 3 years; [4]---
[June 20, 1891] -
BOSSIE v. COMMONWEALTH.
COURT OF APPEALS OF KENTUCKY
13 Ky.L.Rptr. 217, 16 S.W. 713
June 20, 1891.
Laurel county; ROBERT BOYD, Judge.
“Not to be officially reported.”
*713 W. O. Bradley, for appellant. P. W. Hardin, for the Commonwealth.
PRYOR, J.
The appellant, John Bossie, was indicted in the Laurel circuit court jointly with Henry Miller for the murder of Larkin Byrd. This is the second conviction. The accused, Bossie, having had a separate trial, was found guilty of manslaughter, and his punishment fixed at confinement in the state-prison for the period of three years. Bossie, an Italian by birth, is a peaceable, quiet, and inoffensive man, and when at his home with his family on a Sabbath day was alarmed by the firing of a gun or pistol from a point not more than 150 yards from his home, the ball passing so near the body of his wife, who was in the yard, as to cause her to cry out to her husband for protection. The man firing the shot was Larkin Byrd, between whom and the accused there had never been any hostile feeling. Byrd seems to have been drunk on that day, and amusing himself by firing, or offering to fire, his pistol at his neighbors. He had, shortly before the shooting in defendant's yard, presented his pistol at three of his neighbors without any cause; and in a short time thereafter, and not long before he reached the house of the accused, actually fired at another neighbor, as he claimed through mistake, supposing this neighbor was another man, whose life he desired to take. Byrd is proven to have been a reckless and dangerous man, and Williams, the principal witness for the state, seems to have had this arsenal in the shape of a man riding behind him, and deposited him at the spot from where the shot at Bossie's house or at his family was fired. This witness was as drunk as Byrd, as both his own testimony and that of others shows, and about the time, or shortly before, Byrd was killed, had taken possession of the latter's pistol, and snapped it at him, and all that prevented his taking the life of Byrd was that he snapped the barrel that had been discharged. This was the condition of the men, and the circumstances surrounding Bossie, that led to the killing of Byrd. Byrd was reloading his pistol, and, after *714 firing, invited Bossie--“an old bald-headed son of a bitch,” as he called him--to come out of his house. The statement of Bossie is to the effect--and it is as unfavorable to him as that of any witness is--that he went into his house, obtained two shotguns and a pistol, intending to give one to his son, and started towards Byrd for the purpose of disarming him, when Miller took one of the guns from him, and they then went together to where Byrd was; that Miller was in the advance, and looked back to see if Bossie was coming. They reached Byrd, and, the latter with his pistol cocked and they with their guns in the same condition, requested him to let his pistol down or drop it. This he did, and then Bossie rested his gun on the ground, and made no effort to shoot Byrd, or advise any one to shoot him. The weight of the testimony is that Byrd had a knife, and was advancing on Miller, when he (Miller) shot him, and there is no pretense that Bossie fired, or advised any one to do so. This is the uncontradicted testimony in the case as to Bossie. His statement that he went to Byrd to disarm him must be believed, because he had every opportunity to shoot him, if that was his purpose, from the time he reached the spot where Byrd was until Miller fired; but, on the contrary, he had the butt of his gun on the ground, and was making and had made no demonstration whatever, except as stated. If, therefore, Bossie went to Byrd for the purpose of disarming him, and to protect his family from further danger, and did not advise the shooting of Byrd by Miller, he is not guilty, and, even if he had advised it,--and of this there is no proof,--if Miller shot to protect his own person from the assault of the deceased, and used no more force than was necessary for that purpose, the accused is not guilty.
There is no conspiracy shown to have existed, or to have been entered into, between the two, Bossie and Miller, to take the life of Byrd, and no instruction should have been given on that subject. When the case was heretofore in this court the instructions were not discussed or passed upon. If, therefore, the deceased shot in appellant's yard, and endangered the lives of his family, it was the right and duty of the appellant to protect them, and to do so he had the right to disarm the deceased, and to call on Miller to aid him in so doing; and if Miller even shot the deceased under the circumstances, when there was no necessity for the killing, the accused is not guilty unless he advised the shooting. An instruction should have been given the jury embracing this view of the case, and no instruction as to any conspiracy, as none was proven to have existed. Here was a man of violent passions, reckless, dangerous, and drunk, firing at those on the road-side, and into the dwelling or yard of Bossie, without any reason and for no cause given him by any of the parties, and to relieve themselves of danger, as well as to protect others from the assaults of this dangerous man, it was the duty of good citizens to arrest his movements, and to disarm him; and if, in doing so, he, by his assaults upon them, placed them in danger of losing their lives, they had the right to use such force as was necessary to prevent injury. If this unoffensive man had remained in his cabin with his wife and children, it was reasonable on his part to believe that the deceased would continue his assaults, and perhaps murder his wife or children. His hut was his castle. He had the right to drive the invader from it, and, if not on his premises, it was his duty to disarm Byrd, so as to prevent the messenger, in the shape of a leaden bullet, from taking the lives of members of his family. This judgment is reversed and remanded, with directions to award a new trial, and for proceedings consistent with this opinion. [5]
---
[June 23, 1891] -
The court of appeals has reversed the judgment of three years against John Bosse, rendered by the Laurel circuit court for the killing of Larkin Byrd. Byrd was drunk and firing recklessly, when the bullet came so close to the wife of Bosse, who had never before had any trouble with Byrd, that Bosse, in an effort to force Byrd to cease his drunken assault, was forced to kill the assailant. [6]---
[1914] -
SORRY BILL BIRD COULDN'T HEAR IT.
Colonel Anson Clark was Commonwealth's Attorney in the London circuit court, and was one of the most powerful prosecutors in Kentucky. He had been a gallant Colonel in the Union Army, and stood high; after the circumstances mentioned he was elected Circuit Judge.
John Bossie, an Italian coal miner, killed Bill Bird, and Senator Bradley, in defending him had earnestly pleaded for equal justice for the man who had left his home in Italy to seek an asylum in the United States. Clark answered:
"Mr. Bradley has made a most eloquent plea, as he always does. I was deeply moved by his beautiful description of 'Sunny Italy;' indeed, I was moved almost to tears because of my deep regret that poor Bill Bird could not hear it." [7]
--------------------
[1] Excerpt from "London, Laurel County." Semi-Weekly Interior Journal, Stanford, KY. September 21, 1888. Page 1. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052020/1888-09-21/ed-1/seq-1/
[2] Excerpt from "London, Laurel County." Semi-Weekly Interior Journal, Stanford, KY. September 28, 1888. Page 4. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052020/1888-09-28/ed-1/seq-4/
[3] Miller v. Commonwealth, 89 Ky. 653, 10 S.W. 137 (1888).
[4] Excerpt from "London, Laurel County." Semi-Weekly Interior Journal, Stanford, KY. May 29, 1891. Page 2. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052020/1891-05-29/ed-1/seq-1/
[5] Bossie v. Commonwealth, 13 Ky.L.Rptr. 217, 16 S.W. 713 (1891). Retrieved from Westlaw.com.
[6] Excerpt from "City and Vicinity." Semi-Weekly Interior Journal, Stanford, KY. June 23, 1891. Page 3. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052020/1891-06-23/ed-1/seq-3/
[7] William O. Bradley, with biographical sketch by M. H. Thatcher, Stories and Speeches of William O. Bradley (Lexington,, KY: Transylvania Printing Company, 1916), 93. Accessed April 24, 2017, Internet Archive.
.
No comments:
Post a Comment