Blanton v. Commonwealth
103 S.W. 329
June 28, 1907. (Approx. 1 page)
31 Ky.L.Rptr. 800
Court of Appeals of Kentucky.
June 28, 1907.
Appeal from Circuit Court, Harlan County.
"Not to be officially reported."
Elijah Blanton was convicted of murder, and he appeals. Reversed, and remanded for new trial.
Where, on a trial for murder, there was evidence that defendant's shooting of decedent was accidental, without careless or reckless handling of the pistol, an instruction should have been given that if defendant had reasonable grounds to believe, and did believe, that there was no danger in handling the pistol as he did, and that it was done without any purpose to harm, but that the killing resulted from the careless use of the weapon, then he was guilty of involuntary manslaughter, but that if the killing was accidental, and without carelessness, then he must be acquitted.
*329 W. F. Hall, for appellant. N. B. Hays, Atty. Gen., and Chas. H. Morris, for the Commonwealth.
The appellant, Elijah Blanton, was indicted by the grand jury of Harlan county circuit court at its October term, 1906, for the murder of his wife, Rachel Blanton. At the May term of 1907 the defendant was tried by a jury, which found him guilty and fixed his punishment at confinement in the penitentiary for and during his natural life.
No one was present when the killing took place, except the defendant, the deceased, and their small children. The commonwealth presented no evidence whatever as to how the tragedy occurred, but confined its testimony to proof of the death of Rachel Blanton and appellant's intimacy with another woman and to threats which appellant had made against the life of his wife. Appellant's defense was accidental killing. He testified that he had come in from work and had thrown his pistol on the bed. His wife, seeing the pistol and fearing that one or more of the children might be injured by handling it, told him to unload the pistol. He picked up the pistol, and in attempting to extract the cartridges from the cylinder one was accidentally exploded and struck his wife. From this wound his wife died. The testimony of appellant was confirmed by the dying declaration of his wife, made in the presence of several witnesses. Upon these facts the court gave but two instructions. The *330 first was the usual willful murder instruction, and is not subject to criticism. The second was upon the question of reasonable doubt.
Counsel for appellant insists that the trial court erred in not giving the whole law of the case as applicable to the facts. We think this contention of counsel is correct. The only defense appellant had was that of accidental killing. The jury upon this question should, in substance, have been told that if they believed from the evidence the accused had reasonable grounds to believe, and did believe, there was no danger in handling the pistol as he did, and that it was done without any purpose of harm upon his part, but further believed from the evidence, to the exclusion of a reasonable doubt, that the killing resulted from the careless use of the weapon, then they should find him guilty of involuntary manslaughter, and fix his punishment at fine and imprisonment in the county jail, in their discretion; but if they believed the killing was accidental, and without carelessness, they should acquit him. Commonwealth v. Matthews, 89 Ky. 287, 12 S. W. 333; Messer v. Commonwealth, 76 S. W. 331, 25 Ky. Law Rep. 700.
Judgment reversed, and cause remanded for a new trial consistent with this opinion.
BLANTON v. COMMONWEALTH.
103 S.W. 329, 31 Ky.L.Rptr. 800
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