Opinion
April 24, 1953.
Appeal from the Wolfe Circuit Court, Wolfe County.
Earl B. Rose, Beattyville, Ollie James Cockrell, Jackson, for appellant.
J.D. Buckman, Jr., Atty. Gen., Squire N. Williams, Jr., Frankfort, for appellee.
Appellant was convicted of maliciously cutting and wounding one George Little, and was sentenced to serve 10 years in the state penitentiary. On this appeal his only ground for reversal is that the court erred in failing to give a self-defense instruction.
The evidence for the Commonwealth was that after appellant had entered into an altercation with two men, George Little approached and inquired what was the matter. Thereupon appellant "jumped at him and struck him in the back with a large knife". Defendant testified that Little first struck him, that they clinched and fell on the ground, and "that he did not have a knife and did not cut Little but only defended himself as best he could with his fists".
The only case cited by appellant is Elliott v. Commonwealth, 152 Ky. 791, 154 S.W. 25, wherein it was held that a self-defense instruction should be given even though defendant denied a shooting, where the evidence, though wholly circumstantial, indicated a struggle had taken place. Combs v. Commonwealth, 196 Ky. 804, 246 S.W. 132, and Jones v. Commonwealth, 252 Ky. 341, 67 S.W.2d 480, are more directly in point. Therein it was held that if the evidence tends to raise an issue of self-defense, even though the defendant denies committing the act of which he is accused, he is entitled to such an instruction.
In the present case appellant testified that he and Little were engaged in combat and he was defending himself. Even though he denied using a knife, the jury could conclude that if he did so it was in self-defense. Since the issue was clearly raised, a separate instruction on this theory should have been given.
In the case cited by the Commonwealth, Muncy v. Commonwealth, 265 Ky. 730, 97 S.W.2d 606, it did not appear that the defendant and the deceased were engaged in an altercation or struggle.
The judgment is reversed.