Turner v. Commonwealth
1 S.W. 475
Ky.App. 1886.
September 30, 1886. (Approx. 3 pages)
8 Ky.L.Rptr. 350, 12 Ky.L.Rptr. 273, 89 Ky. 78

Appeal from circuit court, Clay county.
    On motion to reinstate a criminal case on the docket, a nonsuit having been entered in 1875.
    While a suggestion that a prisoner appealing is without counsel, or unable to employ counsel, would require the interposition of this court in his behalf, yet, after the lapse of many years, this court cannot rehear a case which was dismissed for want of prosecution, simply because counsel neglected the case or the condemned was unable to employ counsel, although the condemned has all the time been confined within the walls of a prison.
    Since the right to appeal in a criminal case is not a constitutional right, the appellate court will not hear an appeal, where accused has failed to perfect it for many years after his sentence.
    When the evidence shows that the accused lay in wait and slew his adversary without or with warning, there will be no ground for an instruction on self- defense, even though it appear that the accused had been previously threatened and assaulted with a deadly weapon by deceased.
    When the evidence shows that the accused lay in wait and slew his adversary without or with warning, there will be no ground for an instruction on manslaughter, even though it appear that the accused had been previously threatened and assaulted with a deadly weapon by the deceased.
*475 Ira Julian, for appellant, James Turner and another. P. W. Hardin, for the Commonwealth.
    James Turner, having been indicted for the murder of William Middleton in the Harlan circuit court, was tried in the Clay circuit under a change of venue, and upon the hearing was convicted and sentenced to the penitentiary for life. The trial was had in February, 1875, and the case brought to this court on the eighth of March, 1875, and set for hearing on the nineteenth of the same month. The case was then passed, to be heard on the twenty-fifth of March, and again to be heard on the third of April, and finally set for hearing on the first day of the succeeding June term of this court, and on the eleventh of that month a nonsuit was ordered, and the appeal dismissed. On the sixteenth of the present month, September, 1886, a motion was made to redocket, and counsel for the accused has been heard on the motion to redocket (that question being reserved at the instance of the attorney for the *476 state) and on the merits. The prisoner has been confined in the state prison for more than 11 years since the nonsuit was entered, and for the first time seems to have discovered that he was not represented by counsel in this court on the appeal; and, claiming that many errors were committed to his prejudice during the trial in the court below, is now asking this court to reverse the judgment of conviction, and grant him a new trial.
    Without determining the extent of the power of this court over its orders in a criminal case after the expiration of the term at which the case has been finally disposed of, it is plain that some limitation must be placed upon the exercise of such a discretion, and it is neither reasonable nor proper, after such a lapse of time, this court should indulge a motion like this, and reopen the case for the purpose of passing upon the objections made to the judgment below. The right to an appeal, in such cases, is not a constitutional right; and the accused, having had his trial below, must conform to the rules prescribed by law for bringing his case to this court, and to the practice adopted here as to its final disposition. Instructions on the trial below may have been erroneous and prejudicial to the accused; still certain rules of practice must be observed, with reference to exceptions, before such errors can be corrected; and, when there is a failure to prosecute the appeal, the rule of practice in this court must be observed, or a dismissal necessarily follows. A suggestion that the prisoner is without counsel, or unable to employ one, would require the interposition of the court in his behalf; but after the lapse of so many years, although confined within the walls of a prison, it would be a dangerous precedent to entertain such motions, or to rehear cases by reason of the neglect of counsel, or the want of ability on the part of the condemned to make an employment.
    The condemned was living in the county where the indictment was found, with, no doubt, friends, or those interested in his behalf, surrounding him. The testimony so indicates. Besides, the court, before entering a nonsuit, may have looked into the case with a view of ascertaining the nature of the charge, and the character of the proof to sustain it.
    We have read the testimony in this case when considering the motion, and we do not see upon the facts that either an instruction for manslaughter or self- defense should have been given, That there was a deadly feud existing between the Middletons and the condemned is manifest. The affiant here had waylaid Middleton more than once for the purpose of killing him; and, while there is proof showing that the Middletons had attempted to induce others to kill Turner, their personal attacks on the latter were made in an open and undisguised manner. That they would have killed Turner whenever an opportunity offered is plain, and equally as manifest that Turner was seeking an opportunity to kill the Middletons. On the day and at the time of the killing the deceased was riding along the highway with one or two of his neighbors, going to the county-seat, and, when arriving at a bend in the road about two miles from Middleton's home, those who were with Middleton heard the report of a gun,--perhaps two,--and saw Middleton falling from his horse, having been shot in the back. The parties shooting Middleton were in ambush, and fired, evidently, without any word of warning to Middleton, or those with him. Neither Turner nor Pace were in company with the parties, or known to be at the place when the deceased was shot. They were seen afterwards going from the place, and their tracks, and other circumstantial testimony of a strong character, tended to the conviction.
    There is no case establishing the doctrine that the one has the right to pursue his adversary until out of danger, except the Phillips Case, which has been overruled, and certainly no case that would justify or excuse one for lying in wait and slaying his adversary without or with warning, although he had been previously threatened and assaulted with a deadly weapon by the deceased. Such a ruling would not only invite, but encourage, guerrilla warfare, *477 where the wicked and reckless desperado could select his victim, and from a secluded spot take his life, and then, by proof of antecedent threats or former assaults by the deceased, demand an acquittal. Such is not the law of the Bohannon Case, or any other authority referred to by counsel. Such a light estimate of the value of human life by the courts of the country would be a mockery of justice, and a license to those who have no regard for the laws of their state to continue these deeds of assassination and murder.
    We see no reason for entertaining the motion further, and nothing but the zeal of counsel, that is commendable, has induced the court to examine the facts with a view of showing that the court had a knowledge of this case by an inspection of the record before the nonsuit was entered. The case is ordered to be stricken from the docket.
Ky.App. 1886.
1 S.W. 475, 8 Ky.L.Rptr. 350, 12 Ky.L.Rptr. 273, 89 Ky. 78