Fain v. Commonwealth
As described by the Court of Appeals of Kentucky in Fain v. The Commonwealth, 78 Ky. 183 (1879), it was a cold February evening in 1879 when defendant Fain and a friend entered the lobby of the Veranda Hotel, shook the snow off their coats, and sat down. Both were tired, especially Fain, who had not slept much lately because of sick children at home whose care kept him awake at night. It was warm inside the hotel lobby, the lights were dim, and it was not long before Fain and his friend fell asleep where they sat.
Eventually, Fain’s friend woke up and tried to wake Fain but could not. He went to the reception desk and booked a room with two beds, then sent the receptionist to wake Fain. The receptionist tried, but could not, and told Fain’s friend that he thought the defendant was dead. The friend told him to not be silly, and to get on with it. What followed, in the words of the court:
“The [receptionist] shook him harder and harder until [Fain] looked up and asked what he wanted. The [receptionist] said he wanted him to go to bed. [Fain] said he would not, and told the [receptionist]deceased to go away and let him alone. The [receptionist] said it was getting late, and he wanted to close the house, and still holding [Fain] by the coat, the latter either raised or was lifted up, and, as he arose, he threw his hand to his side as if to draw a weapon. A by stander said to him, don’t shoot; but without noticing or giving any sign that he heard what was said, he drew a pistol and fired. The deceased instantly grappled him to prevent him from shooting again, but a second shot was fired almost immediately, and a third soon followed ”
Then, shouting “How-wee!“, Fain rushed out of the lobby and into the street, pistol in hand. He thrust the pistol into a bystander’s hand, asking him to defend him because he had just shot somebody, but did not know who. The receptionist died of his wounds, and Fain was arrested, tried, and convicted of manslaughter and sentenced to two years in prison, from which sentence he appealed.
The appellate court reversed the conviction on grounds that the trial court erred by not allowing Fain to introduce evidence by medical experts of somnambulism, or that he had been a lifelong sleepwalker. The lower court had denied Fain’s request to introduce evidence that he had to be watched since infancy to prevent him from injuring himself while asleep. Additionally, he had witnesses who were prevented from testifying that when aroused from sleep, Fain frequently got up frightened and resorted to violence as if resisting an assault, and for minutes thereafter, would seem unconscious of what he did or what was going around him. In conclusion, the appellate court held that if Fain had been unconscious or nearly so of what he was doing or what was being done to him, and though he was being attacked and so resisted an attempt to kill or injure him, then he should be acquitted.