H C Davis Appellant
against
The Commonwealth appellee

The Appellant says that the record contains errors to his prejudice as follows

1. That instruction no 1 was abstract and given by the Court below without any facts upon which to predicate it.

2. That the qualifications appended to instruction No 4. were in conflict with the law upon the subject of homicide as expounded by this Court in the case of Rapp against the Commonwealth 14 B M 622 and of Meredith vs the same 18 B M 52&c and the said instruction was rendered obscure & milseading by heaping proviso upon proviso and qualification upon qualification — and was rendered uninteligible to the jury by the numerous references to other matters, and by its interminable linght —

3. The Court erred in writing out a disquisition upon what rational doubts Consist in and in talking to the jury about the consequences of indulging the Chimeras — these expletives were calculated to and must leave prejudice the prisoners case.

4. The Circuit Judge admitted illegal evidence to go to the jury and greatly erred to the prejudice of Appellant by overruling his motion for a new trial.

For the foregoing errors appellant prays that an appeal may be granted him & that his case be reviewed

Elliott Peters &c for Davis

1
Davis
vs
The Commonwealth

Davis was indicted in the Morgan Circuit Court for Killing T Bush, and was tried for the offence at the Nov Term 1859 of the Morgan Circuit Court and convicted to 2 years imprisonment in the penitentiary

The proof in the cause amounts to this in March or April last the citizens around a little village in Morgan Co called Swiftsville met for some purpose, that amongst the rest the prisioner & the deceased were there, that the prisoner & deceased got into a game of Cards & prisoner won the horse of deceased worth about $10. they seperated & prisoner started home, returned however in a short time for a bottle of whiskey, and upon reaching the place discovered that two of his friends one named Evans & the other of the name Snodgrass were in a hostile attitude as if about to fight, he alighted from his horse remaking that these men were friends & must not fight attempting at the same time to get between them, when the deceased took hold of him & prevented him from interposing. Previous requested him twice to let him go Bush still held to him & Davis then struck him with his fist — and persisted in his efforts to prevent any fight between Evans & Snodgrass. About 15 minutes elapsed When Bush struck Davis on the side of the head with a survayor's jacob stalf & knocked him down & repeated the blow & Davis while bleeding & stuned from the effects of the blows drew a knife & stabed Bush 3 times the last strike being the fatal one.

In int instruction No 4. on page 19. of the record the Court uses this language "If the jury believe from the evidence that the prisioner in Morgan County before the finding

2.
of the Indictment stabed and killed Lewellen Bush in sudden heat of passion without malice, he is not guilty of Murder, But he is guilty of Manslaughter & the Jury must so find him &c." and then goes on with a long commentary & reference to the previous instructions

Now so much of the instruction as quoted was erroneous in this that the judge omitted tosay these words Viz "and not in self defence. But the jury were emphatically told by the Cour that if he killed the deceased without malice he was guilty of manslaughter & they only had to say how long he [...] ^should^ serve in the penitentiary —. according to this instruction the right of self defence was excluded from the jury. nor was that proper qualification inserted in that or any other instruction in [...] ^an intelligent^ & legal way. the whole meaning of it is that if he killed Bush in sudden heat and passion, regardless of the necessity he might have been under to do so, he was guilty of manslaughter, and the jury were bound so to find, thereby depriving him of the right to defend himself altho his he might have been in the most [...] ^imminent^ danger of loosing his own life.

As a qualification to that instruction however the Judge did (After in a confused obscure reference to instructions Nos 1. 2 & 3) tell the jury that if they believed "from the evidence that at the time the prisoner gave the deceased the mortal stab that killed him he had reasonable grounds to believe, and actually did believe that the deceased was then about to kill him, or to inflict on him some great bodily harm, and that he furthermore had reasonable grounds to believe, and actually did believe that he had no other apparent means to avoid such a danger ^to himself^ by a retreat or otherwise except to slay the deceased then he had the right to do so" &c. Now this last clause or qualification to this qualification is more objectionable and unauthoritized by the law than the qualification appended

3
to the instruction given by the Circuit Judge in the case of Meredith vs The Commonwealth 18 B M 54. which was condemned by this Court. in that case the Court told the Jury "If the defendant could have excaped &c. he was not excusable. In the case now under consideration they were told that he must actually believe that he had nootherapparentmeans to avoid such a danger to himself &c. by retreat &c. he must not only believe that there was no other way to escape the danger, but that there was no apparent way, no matter how falacious he might know such apparent means were to be. This deprived the prisoner of the right to judge for himself and placed his defence upon the apparent means of escape by running off. the absurd and ridiculious position assumed by the Court may be then illustrated, suppose the abilityof the prisoner ^appeared to be able^ to run away from Bush, but he knew that from the effects of the blows which he had received he could not walk or even rise from the ground and with a full knowledge of his condition he gave the fatal stab then he cannot be excused because he was apparently hewas able to escape.

The instructions are in conflict with the laws as laid down in the case of Rapp against The Commonwealth 14. B M 620. and I add as an insurmountable objection to the instructions that they are too prolix, adding qualifcation upon qualifcation until to a plain man they are inexplicable, and unintelligable. An instruction should in concise and apt language state the principle of law applicable to the facts of the case. tested by this rule which we think a correct one the instructions under consideration cannot be approved, they are a lenghtened, wearisome & complicated efforts at a display of much learning, terminating in almost a volume of provisos —

Instead of telling the jury what was a rational doubt, the judge undertook to tell

4
what it was not, and although he may have correctly defined what a rational dobut is not. Still his comments were in their effects an argument from the bench against the prisoner, and deprived him of a fair and impartial trial

The Court in defining what a reasonable doubt was said "It is one growing out of thefacts." that certainly cannot be correct, they may have had a reasonable doubt, growing out of the absence of some fact to connect the prisoner with the transaction, indeed a rational doubt is more frequently the result of some chasm, or omission than of the presence of facts, but the Judge's definition [...]the inquity to the facts, and if did not allow the jury to consider of the absence of some important fact to connect the prisoner with the act.

We think it is the duty of this Court to prescribe some limit & restrain the Circuit Judges in giving their instructions to plain & concise statements of the principles of law involved without, and condemn the practice of Judges talking & writing about the violation of Jurors Oaths & what tends "to the encouragement of Malefactors" this Court knows the injurious effects of such remarks from the bench upon a prisoner, & their tendency to deprive him of a fair trial — It is the duty of this Court as is it has the power to stop this practise, it is nothing but judicial demagogery yea judicial demagoguery. the case ought to be reversed —

Peter & Hazelrigg

5

In addition to what has been suggested by Messrs Peters and Hazzelrigg the undersigned desires to make refer to a few facts in this record. The Court will see that all the witnesses agree that Davis the prisoner was stricken twice by a large hickory stick or Jacob staff with an iron socket on its end before he drew his Knife or struck bush at all it is further established in proof that Davis sunk under the first blow nearly to the ground retreated was pursued overtaken again stricken a severe blow again sunk & then drew & struck Bush. Davis^s statements as to the Commencement & progress of the difficulty were introduced by the state and he says that he was stricken stunned & blinded & did not know from whom he received the blow he then retreated was Knocked down again &c No witness proves that he and Davis & Bush were ever unfriendly previous to the day Bush was Killed or that Davis had made any threats ^against^ or had commenced any difficulty with Bush It is true the proof tends to show that Davis struck Bush one blow with his fist when Bush was trying to prevent him from separating Evans & Snodgrass who ^were^ neighbors & had even previously been freinds — It is believed that instruction N^o 3. in abstract has no evidence for a

6
a substratum and was misleading to the Jury — It is further believed that the Jury Court not only err^d in instruction No 4 but that the minds of the Jury were confused by it — By this instruction the Jury are told 1^st "If the Jury believe from the evidence that the prisoner in Morgan County beforeand the indictment was found stabbed & Killed Lewellen Bush in Sudden heat and passion without malice then he is not guilty of murder but he is guilty Manslaughter & the Jury should find him &c" Now here follows the qualifications in said instruction one of which I will refer to the Court tells the jury that before Davis was authorized to Kill Bush he must at the time the Mortal Stab was given have belie had reasonable grounds to believe & actually did believe that Bush would Kill or inflict on him some great bodily harm and that he was must have had reasonable grounds to believe ^&^ did actually believe that he had no other apparent means of escape by retreat or otherwise except to Slay Bush and even if he had grounds to believe & did believe all this still if he either sought the conflict or in any way premedidated it he was deprived of this right of self defence or if the Jury believe that at the time Bush received the Mortal

7
stab Davis had reasonable grounds to believe & did believe that he had other apparent means of to escape the danger to himself otherwise than by Killing Bush but being struck by Bush in the fury of his mind struck and Killed Bush with a feeling to retort on Bush and not as an apparent safe means to defend himself from Bushes attack on him he is guilty of Manslaughter atleast

If the facts authorise this last qualification the Jury are not informed whether the prisoner was guilty of Murder or Manslaughter but only says ^that^ he was guilty of Manslaughter atleast by which the ^Court^ in substance says to the Jury that he does not Know whether said instruction as qualified makes out a case of Manslaughter or murder but thinks believes that it is manslaughter at least and leaves it with the Jury to say whether if be more than manslaughter. I had thought that a Judges instruction ought to be Certain and not leave the Jury in dobut as to the offense the prisoner had committed — Messers Peters & Hazelrigg have alluded ^to^ the other instructions by which it will appear that the instruction applicable to the proof of self defense is

8
entirely obscured and beclouded by proviso^s qualification &c In other words the Jury are told that the prisoner who was struck down his head cut to the skull who retreats & ^is^ overtaken nocked down again his face deeply gashed must get up and altho Stunned and blind & his face covered with blood he must hunt for apparent means of escape & altho he has tried ^to^ escape & could not he is not authorized to Stab in his own defence nor is hetobethejudge as to whether he had apparent means of escape taking into Consideration his ^wounded^ condition at the time but whether crippled or stunn^d or blind if he had apparent means of escape he ought ^to^ be convicted

Indeed the instructions are involved in Confusion many of them entirely unsupported by proof & are made to destroy each other by proviso^s & abstract legal propositions &c wherefore be I ask the Court to grant an appeal &c

J M Elliott

H. C. Davis
vs } Brief
The Commonwealth