Leach v. Commonwealth.

him. The error of the court was prejudicial to the Commonwealth, rather than the accused.

It is insisted that none of the instructions given to the jury presented the defense of appellant. His counsel contend that, as he believed at the time he fired the fatal shot that the person at whom it was fired was attempting to enter his house, he had the right to shoot to prevent such entry. A man has a right to kill a burglar or thief who is at the time committing a felony by attempting to break into his house. And so he may, if necessary to protect himself or family from death or bodily harm, shoot an assailant. But a person has no legal or moral right to kill another merely because in the nighttime he comes upon his premises or even knocks on the door of his house. The owner, controller, or occupant of premises who in the night or day time shoots and kills an intruder or trespasser cannot excuse or justify his conduct upon the ground that the person killed was a burglar or thief and upon the premises for the purpose of committing a felony, or attacking with evil intent the person in possession of the premises, in the absence of some evidence conducing to establish this defense. Kentucky Criminal Law & Procedure, by Roberson, sections 155-157; Bishop's New Criminal Law, section 858; Chapman v. Commonwealth, 15 S. W. 50, 12 Ky. Law Rep. 704; Utterback v. Commonwealth, 105 Ky. 723, 20 Ky. Law Rep. 1515, 49 S. W. 479, 88 Am. St. Rep. 328; Baker v. Commonwealth, 93 Ky. 302, 19 S. W. 975, 14 Ky. Law Rep. 183; Saylor v. Commonwealth, 97 Ky. 184, 30 S. W. 390, 17 Ky. Law Rep. 100; Wright v. Commonwealth, 85 Ky. 123, 2 S. W. 904; Sparks v. Commonwealth, 89 Ky. 644, 20 S. W. 167, 12 Ky. Law Rep. 402. If there was any evidence that Gayle at the time he was

Leach v. Commonwealth.

shot was forcibly and wrongfully attempting to enter or break into the house of Leach, or any evidence that Leach believed or had reasonable grounds to believe that the person on his porch was a burglar in the act of entering into his house, the court should have instructed the jury upon the law applicable to this state of facts. So that the question narrows down to the proposition whether or not the evidence of Leach was sufficient to warrant the court in giving an instruction that, if the jury believed from the evidence that Leach believed and had reasonable grounds to believe that some one was trying to break into his house to commit a felony, he had the right to take the life of the intruder, if necessary, or believed by him in the exercise of a reasonable judgment to be necessary, to prevent him from committing the contemplated crime. A careful consideration of Leach's evidence convinces us that it did not authorize an instruction upon this branch of the law. Leach did not testify that he believed or had any grounds to believe that the person on his front porch was a burglar or had come to his house for the purpose of doing him or any of his family any injury, or for the purpose of committing any offense against his property. Hence there was no evidence to warrant the court in giving the instruction counsel insist their client was entitled to. Indeed it is very questionable if, under the evidence, the appellant was entitled to the instruction given by the court, or to any instruction that would authorize the jury to find him not guilty upon the ground that the shooting was either excusable or justifiable.

After a careful consideration of the entire record and the well-prepared argument of his counsel, we

James, Auditor, v. Cromwell.

find no error that would authorize us in granting a new trial.

The judgment of the lower court must be affirmed.


tember 30.

James, Auditor, v. Cromwell

Appeal from Franklin Circuit Court.

R. L. STOUT, Circuit Judge.

From the judgment awarding the writ, the defendant appeals-Reversed.

States-Legislative Expenses-Constitutional Provisions.-Constitution, section 249, provides that the senate shall not employ or pay for exceeding one chief clerk, one assistant clerk, one enrolling clerk, one sergeant at arms, one doorkeeper, one janitor, one cloakroom keeper, and three pages. Ky. Stats. 1903, section 342, provides for the payment of the contingent expenses of the General Assembly on vouchers countersigned by the clerks of the respective houses. Held that, since the Constitution is a limitation on the right of the senate to hire employes, one employed by the chief clerk of the senate to copy bills is not, on the production of a voucher countersigned by the chief clerk, entitled to payment out of the state treasury as a contingent expense, though the services rendered were necessary.


Attorney General, and JOHN F. LOCKETT, Assistant Attorney General, for appellant.

James, Auditor, v. Cromwell.


1. Appellee was an employe serving the senate by writing up daily during the session of the senate, matters occurring in that body, and her work cannot be designated as a contingent expense. (Webster's Unabridged Dictionary, definition of the adjective, contingent; Section 249, State Constitution; Kentucky Statutes, 1988 to 1992, inclusive.)

2. The case of Walker v. Coulter, Auditor, is plainly analogous to this case, overruling as it does the opinion in the case of McDonald v. Norman, Auditor, and declaring that one who performed such work as McDonald did was an employe under section 249, State Constitution and sections 1988-1992, Kentucky Statutes, and could not be paid under section 342, Kentucky Statutes. (Walker v. Coulter, Auditor, 113 Ky. Law Rep., 814.) 3. Appellee performed the same work in senate that McDonald did in the house, and extra clerk is in opinion of appellant's counsel on the same footing as an extra janitor, as in the case of Walker. (M. C. Lilly v. Commonwealth, 29 Ky. Law Rep., 589; Constitution of Kentucky, sec. 249; Kentucky Statutes, secs. 1988-1992.)

JAMES T. BUFORD and WM. CROMWELL for appellee.

1. We contend that the employment of a person to perform an occasional act in the nature of a contingent expense, of either body of the legislature, was not intended to be covered by section 1992 of the Kentucky Statutes.

2. Section 1991, Kentucky Statutes, was not intended to repeal section 342, allowing pay for contingent expenses.

3. The intention to repeal section 342 will not be presumed; the rule being that if two apparently conflicting statutes can be reconciled they must both stand.


Kentucky Statutes, sections 342, 1989, 1990, 1991 and 1992; Constitution, sec. 249; Gen. Statutes, sec. 3, art. 1, p. 249; McDonald v. Auditor, 116 Ky. Law Rep., 137; Walker v. Coulter, 24 Ky. Law Rep., 530; Auditor v. Cain, 22 Ky. Law Rep., 1888; Senate Rule 16.

James, Auditor, v. Cromwell.



Appellee filed her suit in the Franklin circuit court, in which she alleged that during the 1908 session of the Legislature, at the instance and request of the chief clerk of the Senate, she performed services in copying bills, resolutions, and other papers necessary to be done as a contingent expense of the Senate, and which work it was impossible for the clerks of the Senate to do; that these services on her part were reasonably worth $314.75; that the chief clerk of the Senate indorsed and countersigned her said claim for services as correct, and she thereafter presented same to the Auditor of Public Accounts, and requested that he issue his warrant on the Treasurer, directing him to pay same; that the said Auditor refused to issue his warrant for said sum or any part thereof. She asked that a mandamus be issued directing the Auditor to issue his warrant on the Treasurer for the payment of said claim. To this petition the Auditor of Public Accounts filed a general demurrer, and pending same filed his answer, in which he denied that the work which appellee alleged she had done was such as could be properly charged to the contingent expense of the Senate, under section 342, Ky. St. 1903, and denied the right and authority of the chief clerk to make such employment, or to indorse and countersign her said account, and pleaded affirmatively that the plaintiff was not employed by the joint action of the two houses of the General Assembly, and denied that the right existed in any one to employ plaintiff without such action on the part of the General Assembly. To this answer plaintiff filed a general demurrer, and pend

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