Bolen v. Commonwealth

• Decision Date: 10 October 1933
• Citation: 250 Ky. 593,63 S.W.2d 772
• Parties: BOLEN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

63 S.W.2d 772

250 Ky. 593

BOLEN v. COMMONWEALTH.

Court of Appeals of Kentucky

October 10, 1933

Appeal from Circuit Court, Knott County.

Joe Bolen was convicted of manslaughter, and he appeals.

Reversed and remanded.

D. G Boleyn, of Hazard, for appellant.

Bailey P. Wootton, Atty. Gen., and H. Hamilton Rice, Asst. Atty Gen., for the Commonwealth.

CLAY Justice.

Joe Bolen appeals from a judgment convicting him of manslaughter and fixing his punishment at twenty-one years' imprisonment.

The facts are these: Appellant, a young man twenty years old, and his wife lived in a log cabin on Collins' branch of Carr's fork in Knott county. There lived in the community two Neace boys, Bradley and Will, and two Vance boys, Hargis and Estill. Estill was seventeen years of age. These boys were in the habit of coming to appellant's home, playing the banjo, and otherwise enjoying themselves. On the evening of the killing the Neace boys arrived first and were seated before the fire. At that time appellant's wife was out milking the cow. Appellant had a pistol in his shirt containing three cartridges, and handed it to Will Neace to look at. According to Bradley, Will took the pistol, turned the shells out in his hand, then put all the cartridges back and returned it to appellant. About this time Hargis Vance and Estill, who had gone to the Neace home, came to appellant's home and entered a door to the left or back of appellant. According to Hargis Vance, appellant turned his head and threw the gun on him. He threw up his hands and appellant dropped the gun. Appellant then turned the gun back again on his brother, raised it up, and shot. Before striking his brother the bullet passed through his clothes. On the other hand, appellant testified that Will Neace took the cartridges out and he never saw him put them back. It was dark at the time, and all the light there was came from the fireplace. Will Neace reached him the gun and he took hold of the butt. He saw it was cocked and started to let it down, and turned it away from the Neace boys. He did not know there was a cartridge in the pistol and his finger slipped off the lock and the pistol went off. He did not know that the Vance boys were back in the room. He heard a noise on the porch, but thought it was his wife. After the shooting he went to Rock House, and on the advice of some relatives, who told him that the Vances would kill him, he went to Virginia, stayed awhile, and then returned.

The court instructed on murder, reckless handling of a pistol involuntary manslaughter, and accidental killing. Appellant's principal complaint is of instruction No. 2, which reads: "If the Jury do not believe and find as in Instruction No. 1, but do believe and find from the evidence beyond a reasonable doubt that the defendant, Joe Bolen, in Knott County, before the finding of the indictment, willfully, with gross negligence, used or handled a pistol, a deadly weapon loaded with powder and leaden bullets, or other hard and explosive substance, in a way and manner and under circumstances showing a reckless disregard by him of human life, and by reason of such reckless and negligent handling of such deadly weapon, the same was caused to fire and shoot and wound the said Estill Vance, and from which shooting and wounding he then and there presently died, you will find the defendant guilty of voluntary manslaughter and fix his punishment at confinement in the penitentiary for not less than two years, nor more than twenty-one, in the discretion of the jury." The ground of complaint is that the instruction failed to define the words "gross negligence" and "reckless." The rule to be gathered from the opinions is that it is error not to define such words as "gross negligence," "grossly careless," and the like, Jones v. Commonwealth, 213 Ky. 356, 281 S.W. 164, unless such terms are in effect defined by submitting to the jury the elements necessary to constitute gross negligence, or to make the act grossly careless. Walker v. Commonwealth, 235 Ky. 471, 31 S.W.(2d) 721. The instruction in question does not...