Opinion op the Court by
Judge O’Neal- —
Reversing.
Appellant, Finis M. Yanglm, shot and killed Robert L. Rider in the Christian church at G-lendale on Wednesday evening, September 20th, 1922. He was indicted upon the charge of wilful murder and was tried and convicted in the Hardin circuit court, his punishment being fixed at life imprisonment. Plis1 motion for a new trial having been overruled, he prosecutes this appeal, seeking a reversal on the following grounds:
1. Failure of the court to instruct on manslaughter.
2. Misconduct of attorneys for the Commonwealth.
3. Rejection of competent evidence offered by the defendant.
4. Refusal to grant a change of venue.
5. Newly discovered evidence.
Since we have cpncluded the judgment must be reversed and the case retried, we will only summarize so much of the evidence as is necessary to a proper understanding of the questions raised upon this appeal.
Appellant, together with his wife, fifteen-year-old son and two younger daughters, lived on a farm in Hardin county, half a mile southwest of Glendale, in which village Robert L. Rider resided and conducted a mercantile establishment. During the fall of 1921, for the reasons. hereinafter stated, appellant became convinced, or, [231]*231for mercenary reasons as claimed by the Commonwealth, pretended to have become convinced that Rider had debauched his wife and broken up his home, and he- accordingly instituted an action for divorce against his wife, and filed a suit for damages against Rider, both of which were based upon charges of their misconduct. He was defeated in the divorce action, but the damagie suit against Rider was still pending at the time of the tragedy upon which this prosecution is based.
The material facts of the homicide are substantially undisputed. As stated before, it occurred in the church while services were in progress. Rider was seated to the left of the center aisle facing the minister and with his back toward the rear door. Some sixty or seventy men, women and children were in attendance and among them were appellant’s wife and two little daughters, who were seated about three rows in front of deceased. Shortly after the meeting began, appellant entered through the rear door and sat down back of and to the right of Rider. After looking over the audience for five or ten minutes, he went out and was gone for half an hour or more. Upon his return he again entered the rear door, pulled a chair out into the open space at the rear of the church and to the right of the aisle, and sat down. He was thus back of and to the right of Rider. For some ten minutes he sat nervously in his chair, looking over the audience and particularly in the direction of the deceased. The closing hymn had been sung, and a convert had gone forward to make his confession; it was the most solemn moment of the services, and there was not a sound in the church. Suddenly appellant sprang up from his chair, advanced one or two steps toward Rider, mumbling indistinctly, according to the majority of the witnesses, but saying, “I’ve got you, you-,” according to at least two witnesses, and before Rider could do more than half rise from his seat, he shot the latter five or six times, killing him almost instantly.
Appellant’s defense was insanity of the type characterized by the physicians who testified for him as acute mania. In support of that defense his evidence tended to prove the following state of facts: He had become suspicious of his wife’s conduct in the summer of 1921, and his suspicions- were greatly increased, and centered on Rider when he saw the latter squeezing his (appellant’s) wife’s hand in the same church in which later the tragedy occurred. Shortly after having observed this familiarity, [232]*232lie was advised by several of Ms colored • neighbors that Rider was in the habit of visiting his wife during his absence and particularly on Sunday mornings. He also learned that Rider had given his wife various presents, among them a pair of shoes. On Thanksgiving morning his fifteen-year-old son asked at the breakfast table in the presence of himself and his wife, “what the devil Rider was doing” slipping around the back of their house the night before, as he had seen him doing. This augmented his suspicions, and he determined to ascertain the truth of the report he had heard. He pretended to his wife that it was necessary for him to be absent from home for a few days on business, and accordingly he left on Thanksgiving afternoon. He returned secretly about 9:30 the same evening, hid under a rose bush in his yard, and watched his house for some time, without results. He again left and did not return until about 2 a. m. the following Sunday morning, at which time he climbed up over the kitchen and entered a second story window and secreted himself under the bed in which his son was sleeping. There he remained in hiding until late Sunday morning and until after his children had gone. He then came out from his hiding place and went to the window, where he could watch his wife doing her daily chores in the yard. He saw her enter one of the outhouses at the rear of the place, but from his position could not see anyone who might enter the building by the rear door. His wife remained in the outhouse for about twenty minutes, and he became convinced that she was with Rider. He armed himself with a pistol and started to go out where he believed the guilty couple to be; he met his wife returning to the house, and his threatening appearance so startled her that she became very much excited and wanted to know what it meant. He told her his suspicions, and she broke down and confessed her guilt and begged him to do nothing violent for the sake of the children. He was terribly upset, unable to sleep or eat, and did not know what to do. He sought out Rider a few days after his wife’s confession and demanded an explanation. The latter advanced upon him with his hands in his pockets and in a threatening manner, whereupon appellant pointed 'his pistol at him and threatened to kill him if he undertook to do anything. Deceased agreed to go across the street to the bank where the3r could talk it over, and went to get his hat but never returned; and the record does not show [233]*233that appellant ever saw him again from that day in November until he shot him to death the following September. Immediately after his wife’s confession appellant ceased to live at home, although occasionally going there to see his children and to take care of his stock and other property. He slept in the house upon several occasions but always with his son. After his wife had confessed, he made other investigations among his neighbors, and at the trial of his divorce suit proved by numerous witnesses who testified in his presence that his wife had confessed her guilt to them. He states that he did not live anywhere particularly after he left home, but wandered from place to place until the following July, when he went to Lexington. He went there to be near his boy, who had been sent to Greendale some time in April, 1922. In Lexington he worked for the C. & O. Railroad, and while in its employ and because of the labor troubles then existing he prchased a pistol with which he afterwards killed Rider. During all the time he was in Lexington he was sick,, restless, and worried so that he- could neither sleep nor eat.
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Opinion op the Court by
Judge O’Neal- —
Reversing.
Appellant, Finis M. Yanglm, shot and killed Robert L. Rider in the Christian church at G-lendale on Wednesday evening, September 20th, 1922. He was indicted upon the charge of wilful murder and was tried and convicted in the Hardin circuit court, his punishment being fixed at life imprisonment. Plis1 motion for a new trial having been overruled, he prosecutes this appeal, seeking a reversal on the following grounds:
1. Failure of the court to instruct on manslaughter.
2. Misconduct of attorneys for the Commonwealth.
3. Rejection of competent evidence offered by the defendant.
4. Refusal to grant a change of venue.
5. Newly discovered evidence.
Since we have cpncluded the judgment must be reversed and the case retried, we will only summarize so much of the evidence as is necessary to a proper understanding of the questions raised upon this appeal.
Appellant, together with his wife, fifteen-year-old son and two younger daughters, lived on a farm in Hardin county, half a mile southwest of Glendale, in which village Robert L. Rider resided and conducted a mercantile establishment. During the fall of 1921, for the reasons. hereinafter stated, appellant became convinced, or, [231]*231for mercenary reasons as claimed by the Commonwealth, pretended to have become convinced that Rider had debauched his wife and broken up his home, and he- accordingly instituted an action for divorce against his wife, and filed a suit for damages against Rider, both of which were based upon charges of their misconduct. He was defeated in the divorce action, but the damagie suit against Rider was still pending at the time of the tragedy upon which this prosecution is based.
The material facts of the homicide are substantially undisputed. As stated before, it occurred in the church while services were in progress. Rider was seated to the left of the center aisle facing the minister and with his back toward the rear door. Some sixty or seventy men, women and children were in attendance and among them were appellant’s wife and two little daughters, who were seated about three rows in front of deceased. Shortly after the meeting began, appellant entered through the rear door and sat down back of and to the right of Rider. After looking over the audience for five or ten minutes, he went out and was gone for half an hour or more. Upon his return he again entered the rear door, pulled a chair out into the open space at the rear of the church and to the right of the aisle, and sat down. He was thus back of and to the right of Rider. For some ten minutes he sat nervously in his chair, looking over the audience and particularly in the direction of the deceased. The closing hymn had been sung, and a convert had gone forward to make his confession; it was the most solemn moment of the services, and there was not a sound in the church. Suddenly appellant sprang up from his chair, advanced one or two steps toward Rider, mumbling indistinctly, according to the majority of the witnesses, but saying, “I’ve got you, you-,” according to at least two witnesses, and before Rider could do more than half rise from his seat, he shot the latter five or six times, killing him almost instantly.
Appellant’s defense was insanity of the type characterized by the physicians who testified for him as acute mania. In support of that defense his evidence tended to prove the following state of facts: He had become suspicious of his wife’s conduct in the summer of 1921, and his suspicions- were greatly increased, and centered on Rider when he saw the latter squeezing his (appellant’s) wife’s hand in the same church in which later the tragedy occurred. Shortly after having observed this familiarity, [232]*232lie was advised by several of Ms colored • neighbors that Rider was in the habit of visiting his wife during his absence and particularly on Sunday mornings. He also learned that Rider had given his wife various presents, among them a pair of shoes. On Thanksgiving morning his fifteen-year-old son asked at the breakfast table in the presence of himself and his wife, “what the devil Rider was doing” slipping around the back of their house the night before, as he had seen him doing. This augmented his suspicions, and he determined to ascertain the truth of the report he had heard. He pretended to his wife that it was necessary for him to be absent from home for a few days on business, and accordingly he left on Thanksgiving afternoon. He returned secretly about 9:30 the same evening, hid under a rose bush in his yard, and watched his house for some time, without results. He again left and did not return until about 2 a. m. the following Sunday morning, at which time he climbed up over the kitchen and entered a second story window and secreted himself under the bed in which his son was sleeping. There he remained in hiding until late Sunday morning and until after his children had gone. He then came out from his hiding place and went to the window, where he could watch his wife doing her daily chores in the yard. He saw her enter one of the outhouses at the rear of the place, but from his position could not see anyone who might enter the building by the rear door. His wife remained in the outhouse for about twenty minutes, and he became convinced that she was with Rider. He armed himself with a pistol and started to go out where he believed the guilty couple to be; he met his wife returning to the house, and his threatening appearance so startled her that she became very much excited and wanted to know what it meant. He told her his suspicions, and she broke down and confessed her guilt and begged him to do nothing violent for the sake of the children. He was terribly upset, unable to sleep or eat, and did not know what to do. He sought out Rider a few days after his wife’s confession and demanded an explanation. The latter advanced upon him with his hands in his pockets and in a threatening manner, whereupon appellant pointed 'his pistol at him and threatened to kill him if he undertook to do anything. Deceased agreed to go across the street to the bank where the3r could talk it over, and went to get his hat but never returned; and the record does not show [233]*233that appellant ever saw him again from that day in November until he shot him to death the following September. Immediately after his wife’s confession appellant ceased to live at home, although occasionally going there to see his children and to take care of his stock and other property. He slept in the house upon several occasions but always with his son. After his wife had confessed, he made other investigations among his neighbors, and at the trial of his divorce suit proved by numerous witnesses who testified in his presence that his wife had confessed her guilt to them. He states that he did not live anywhere particularly after he left home, but wandered from place to place until the following July, when he went to Lexington. He went there to be near his boy, who had been sent to Greendale some time in April, 1922. In Lexington he worked for the C. & O. Railroad, and while in its employ and because of the labor troubles then existing he prchased a pistol with which he afterwards killed Rider. During all the time he was in Lexington he was sick,, restless, and worried so that he- could neither sleep nor eat. He was confined to the hospital in Lexington, suffering from high fever and headache; but on Saturday, September 16th, he was permitted to leave, upon his promise not to attempt any wmrk and upon his assurance that he wanted to go home to see his family. He visited his children at Glendale on Sunday, and then visited other relatives in the neighborhood of Elizabethtown until the following "Wednesday. While in Elizabethtown on Wednesday he purchased twelve cartridges, which he states he had been in. the habit of doing and that he had purchased a thousand theretofore. That same night he returned to Glendale, arriving there about 7:30, his sole purpose being to see his family. He disclosed his purpose to one Will Grimes, and the latter informed him that there was a meeting at the Glendale Christian church and he was certain to find his- family there. He therefore went to the church for that purpose. Upon arriving at the church he sat down and looked around for his family, and, as he had been away for some time, he glanced around to see who else that he knew was there. He saw Rider, but had no desire and no intention of harming him, and had no idea of seeing him when he went there. He did not see his family, although they were present, and after looking around for a few minutes, and believing his family to be at home, he left and walked to his home some half mile distant, and at that time had no idea of return[234]*234ing to the church. There he saw a light burning in the house, but found the doors locked. He took a drink or two out of a pint bottle of whiskey which he had brought with him from Lexington the preceding Saturday; and, believing that his family must be at the church and that he had overlooked them on his first visit, he returned to the church. At that time he entertained no feeling of. hatred toward Rider and did not intend to harm him in any way. He walked into the church and took a seat in the rear. He was then asked what he saw when he sat down, and he replied: “Well, when I walked in and sat down, as soon as I came in Mr. Rider threw his eyes right on me, and he just sat there and watched me, looked under the corner of his eyes like this (indicating) and had his hands throwed down in his lap. ’ ’ His recollection of what occurred thereafter is vague and indistinct; it was then, so he claims, that he was overcome by an attack of acute mania superinduced by the long period of mental and physical anguish he had undergone as the result of the debauching of his wife and the wrecking of his home and happiness by the man who sat and stared steadily at him. He did not know just what he did do; his mind was on what he saw in the same church the last time he was there, his wife and Rider “fooling with each other,” and he thought “it started there and it just as well end there,” and he believed he said something of that sort to Rider and “reckons” he shot him, although the next thing he remembered was when he was being held by a number of men. Numerous witnesses stated that he had been a changed man for many months, that he ate and slept little, talked constantly of his ruined home and family troubles and upon the slightest provocation wept over his alleged wrongs, and that in their opinion he was of unsound mind at the time of the homicide.
Upon this state of facts the court properly instructed the jury as to the law of wilful murder and the defense of insanity, but refused defendant’s request for an instruction on voluntary manslaughter.
It is a well settled rule of law that instructions applicable to every state of case deducible from the testimony or supported by it to any extent should be given. Greer v. Commonwealth, 23 R. 489; Tucker v. Commonwealth, 145 Ky. 84. The rule is thus stated in Bowlin v. Commonwealth, 94 Ky. 391:
“In fact it is not the province of the lower court any more than of this, to weigh evidence for the pur[235]*235pose of determining whether a person on trial for bis life is entitled to an instruction as to manslaughter ; but if there is any evidence tending to show the homicide is of the degree of manslaughter, the accused is entitled to an instruction upon that hypothesis.”
After a most careful consideration of the record in this case, we feel constrained to hold that the court erred in refusing to instruct the jury upon the subject of manslaughter.
The Commonwealth neither proved nor undertook to prove a single threat made by the appellant, nor is there any evidence that he ever attempted, prior to the night of the homicide, to harm Rider in any way or even contemplated doing so; in fact the record is barren of any proof of malice other than that inferred from the homicide itself and the original cause which led up to it. On the other hand appellant’s evidence, whether credible or not, strongly refuted the inference of malice, and tended to show that appellant committed the homicide under emotions suddenly aroused beyond control by the memory of bis alleged wrongs, the presence and the conduct of the wrongdoer and the surrounding circumstances, and without any malice or premeditation on his part. Whether he acted under such emotions so aroused, and whether they were the result of insanity or of sudden heat and passion under sufficient provocation, were questions solely for the jury to weigh and determine, and that issue should have been submitted under proper instructions.
In so holding, we are but following a wise and just precedent of long standing in thi s Commonwealth. Shepherd v. Commonwealth, 119 Ky. 931; Shipp v. Commonwealth, 124 Ky. 643.
It is urged that the court erred in refusing to permit appellant’s wife to testify in his behalf, as to what she told him concerning her misconduct with deceased. It has been repeatedly held by this court that she is not a competent witness for this purpose, and the court therefore did not err-in so holding.
It is further insisted that appellant’s motion for a ■change of venue should have been sustained. This is a matter that rests within the sound discretion of the court, and unless that discretion is clearly shown to have been abused, the action of the court will not be disturbed. It is sufficient to say in the present case that under the evidence heard upon the motion the court would not have [236]*236been justified in sustaining the motion, and it therefore did not abuse its discretion in overruling it.
During the course of the arguments for the Commonwealth counsel used the following language:
“I will ask you, gentlemen of the jury, if Nannie Phillips did not state that Mrs. Vaughn asked her to come here and give her deposition. I say she made that statement; if I am wrong, you will not consider it. I asked her the question and she said that Mrs. Vaughn asked her to come and tell what she had told about her.”
And again:
“He was demanding at the hands of Robert Rider money, and at the same time he was living with the woman that he says Robert Rider —”
“lie says he stayed there, didn’t he? He says he stayed there night after night. ’ ’
“Remember this, gentlemen, get this idea out of your head for a minute — remember you are trying1 Robert Rider too. Whenever you come in, gentlemen, and say in this case, ‘not guilty,’ remember that, you are putting the stigma of guilt upon an assassinated citizen, and you are putting that stigma of guilt upon that man without an opportunity to be heard in a court of justice.”
“Why, gentlemen, he started out on a money hunt; he had demanded it, and he said he could not. get a damn cent. He had sued his wife and didn’t get a divorce. He had filed a suit against Bob Rider, and didn’t get any money. ’’
' These statements were improper and necessarily prejudicial, and appellant’s objections thereto should have been sustained. However, as the judgment must be reversed because of the failure of the court to give an instruction on manslaughter, it is not necessary to determine whether or not these improper statements were sufficiently prejudicial in themselves to justify a reversal.
[237]*237Other alleged errors are complained of, hut they concern matters which will have no bearing upon the retrial of this case, and for that, reason we do not find it necessary to discuss them in this opinion'.
For the reasons indicated the judgment is reversed.
Chief Justice Sampson dissenting.