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Asher v. Commonwealth

October 10, 1952

ASHER
v.
COMMONWEALTH



Clay

CLAY, Commissioner. Appellant was convicted of the malicious shooting and wounding of one Curt Wooten and was given the minimum sentence of two years in the penitentiary. On this appeal he urges that the trial court erroneously failed to give him instructions on: (1) shooting in defense of others; and (2) accidental shooting.

Wooten operated a filling station and restaurant. A week before the occurrence he had told appellant not to come back to his place of business. Appellant did return in an automobile with some other persons. Shortly after he arrived in front of the filling station the shooting occurred.

Appellant testified: '* * * before I knowed anything about it somebody shot in at the front end of my car and when they shot I seen Curt turn around and I grabbed the pistol and shot back.' When asked exactly why he shot, he replied: 'Because somebody shot from that truck'.

It appears that Wooten was standing near the truck just mentioned, unarmed. He was hit in the right arm. Appellant's defense was that somebody in the truck opened fire on him and he shot back in self defense. His own testimony established that he did not fire in defense of others, so an instruction on this possibility should not have been given.

Since appellant's evidence was to the effect that he deliberately shot in his own defense, such shooting could not have been accidental, and he was entitled to no instruction on this ground.

Appellant had a fair trial and was fairly convicted. The judgment is affirmed.

19521010

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