Opinion
Decided April 29, 1927.
Appeal from Floyd Circuit Court.
CAUDILL TACKETT for appellant.
FRANK E. DAUGHERTY, Attorney General, and G.D. LITSEY, Assistant Attorney General, for appellee.
Reversing.
Jesse Gibson has appealed from a judgment imposing on him one year's confinement in the penitentiary for maliciously cutting and wounding John Hall. This occurred in a drunken brawl. The instructions were erroneous, and upon the next trial the court will so modify instructions 1 and 2 as to require the jury to believe from the evidence beyond all reasonable doubt the facts therein set out in order to find the defendant guilty. Instruction 4 should be so modified as to rest the defendant's right of self-defense, not on the danger in which the jury believed the defendant was, but upon the danger actually or reasonably apparent to the defendant. This court prepared such an instruction in Mullins v. Com., 108 S.W. 252, 32 Ky. Law Rep. 1216, and it has often been approved.
The judgment is reversed.