De Berry v. Commonwealth

• Decision Date: 27 January 1956
• Citation: 289 S.W.2d 495
• Parties: Charles C. DE BERRY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 495

289 S.W.2d 495

Charles C. DE BERRY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Jan. 27, 1956.

Rehearing Denied May 11, 1956.

C. Ewbank Tucker, Louisville, for appellant.

J. D. Buckman, Jr., Atty. Gen., Zeb A. Stewart, Asst. Atty. Gen., Frankfort, for appellee.

MONTGOMERY, Judge.

Charles C. DeBerry appeals from a judgment inflicting the death sentence upon a conviction of murder. He was tried separately although indicted jointly with five others. Two grounds for reversal are urged: (1) The trial court failed to give the whole law of the case, in that it failed to give a voluntary manslaughter instruction based on the use of narcotic drugs at the time the homicide was committed; and (2) the jury failed to give the case the consideration it deserved since the verdict was returned twenty minutes after the jury retired.

Appellant, in company with Burney Davis, Jr., Willie Childress, Curtis Coleman, John Lancaster, and Nelson McElroy, Negroes, conspired to enter and to rob the safe at the River Road Country Club near Louisville, Kentucky, on January 2, 1955. They were armed with two pistols and a sawed-off shotgun. McElroy was a professional safecracker.

By agreement, the six conspirators arrived in two cars at Mellwood Park, where further discussion was had concerning their plans. Curtis Coleman previously had worked at the Club. He furnished the information on the layout of the Club, including the duties of the night watchman. It was agreed that some disposition might have to be made of the watchman.

McElroy had a boil on one arm, limiting his use of it. He stayed at a nearby tavern, to be called if needed. Lancaster drove the others to the Club and was to drive McElroy there when called. Coleman stayed outside the Club as lookout.

Davis, Childress, and appellant entered the Club building. On hearing approaching steps, they hid in the women's locker room. There, they were discovered. Appellant fired three shots from a .45 caliber automatic at Richard V. Eddins, the night watchman, thereby killing him. Eddins was unarmed.

Appellant made two full statements admitting the homicide. The first statement consisted of six handwritten pages and the second consisted of six single-spaced typewritten pages. Each statement was in detail. At the trial, appellant, in conflict with the statements, said that he did not enter the Club and that he could not tell the jury whether he killed Eddins because he was 'high' on 'dope'. No mention was made in either statement that appellant had used cocaine or was under the influence of a narcotic drug at the time he shot Eddins.

The evidence was in conflict as to whether appellant indulged in the 'sniffing' of cocaine furnished by McElroy while on the way to the Club and whether he was under the influence of narcotic drugs at the time of the shooting. Thus, it was a question of fact to be submitted to the jury.

The trial court instructed the jury on murder, conviction of an accomplice, and corroboration of an accomplice's testimony. An instruction on the influence of narcotic drugs was given as follows:

'No. 4. If the jury believe from the evidence in this case that the defendant by reason of the use of narcotic drugs was in such a mental condition at the time referred to in the evidence herein that he did not know what he was doing, or the nature of his acts, and that by reason of such mental condition resulting from the use of narcotic drugs he was not capable at said time and place of forming in his mind a felonious intent to commit the offense charged in the indictment, you will find the defendant not guilty.'

Appellant contends that the court should have given an instruction on voluntary manslaughter on the theory that the use by appellant and the resulting influence of the narcotic drug on his mind rendered him incapable of forming or having the felonious intent or malice required to sustain a conviction of murder. No complaint is made to instruction No. 4 above, but appellant urges that the voluntary manslaughter instruction should have been given also. So far as the record shows, no such contention was made at the trial.

All of the testimony shows that appellant agreed to participate in the unlawful venture and was on his way to carry it out before he took the cocaine. Appellant stated that McElroy gave him the cocaine and he used it while in the car on the way to the appointed meeting place with his companions. Thus, appellant had formed the felonious intent to enter the Country Club and rob the safe before using the narcotic drug. The disposition of the night watchman was discussed in the preparation for the robbery.

In considering the influence of the drug, two views may be taken. One, that the felonious intent was formed prior to the drug use and was maintained throughout the venture, or else the influence of the drug was not sufficient to prevent appellant from knowing what he was doing or the consequence of his acts. The use of...