Opinion
Decided October 13, 1925.
Appeal from Pike Circuit Court.
PICKLESIMER STEELE and STATON KAZEE for appellant.
FRANK E. DAUGHERTY, Attorney General, and GARDNER K. BYERS, Assistant Attorney General, for appellee.
Affirming.
Appellant was convicted of maliciously shooting and wounding another with intent to kill, and for reversal of the judgment complains (1) of the appointment of Hon. Roscoe Vanover to represent the Commonwealth on the trial of the case pursuant to section 120 of the statutes, and (2) of an alleged substitution during the trial of another for one of the jury selected to try the case.
No such objections were urged below during the progress of the trial nor until in the motion and grounds for a new trial, and for this reason they cannot now be considered. Miller's App., page 2, section 55, and cases there cited.
Nor is the alleged substitution of another for a juror properly manifested by the record, since it appears only from an affidavit filed in support of the motion for a new trial, which was not incorporated in the bill of exceptions, and for this additional reason that question is not here for review. Miller's App., page 2, section 51, and cases in note 57 thereto.
Another complaint is that the first instruction given does not properly define self-defense. But such was not its office or purpose. It merely defines the offense charged and presented to the jury for its determination whether or not it was proven beyond a reasonable doubt. It was not even necessary to include therein, as was done in defining malicious shooting, the words "and not in his self-defense," since the question of self-defense was correctly defined in a separate instruction which is not even criticised. The only purpose or effect of such a reference to self-defense in the instruction defining the offense charged is to call especial attention to the self-defense instruction, as was particularly pointed out in Miller v. Commonwealth 163 Ky. 246, 173 S.W. 761, and has been held in substance in numerous other cases. Catron v. Commonwealth, 140 Ky. 61, 130 S.W. 951; Holcomb v. Commonwealth, 207 Ky. 372, 269 S.W. 349; Cupp v. Commonwealth, 208 Ky. 231, 270 S.W. 774; Conley v. Commonwealth, 208 Ky. 538, 271 S.W. 566, and Hopkins v. Commonwealth, 210 Ky. 378.
Upon the other hand, it obviously is not error to include such a reference to self-defense in the instruction defining the offense, and many cases can be found approving instructions so worded in eases of this kind and others involving the question of self-defense.
It is only where, as in section 1242, the statute employs these words in defining the offense that there is any reason for thus defining it in the instructions. Violet v. Commonwealth, 72 S.W. 1, 24 Ky. L. R. 1720, and whether even then this is essential we need not now discuss since the statute (section 1166) denouncing and defining the offense charged does not provide as an element thereof that the shooting must not be in self-defense.
The only other complaint is of alleged error in the admission of evidence and an admonition of the court with reference thereto, which we do not regard of sufficient materiality to warrant discussion. Judgment affirmed.