Brown v. Com.
| Decision Date | 10 October 1969 |
| Parties | Fannie BROWN, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Marvin L. Henderson, Anthea May Boarman, Lexington, for appellant.
John B. Breckinridge, Atty. Gen., Joseph L. Famularo, Asst. Atty. Gen., Frankfort, for appellee.
Appellant was convicted and given the maximum of 15 years under an indictment charging her with involuntary manslaughter. The indictment charged she 'caused the death of William Turner by wanton indifference to the value of human life in the making and sale of a beverage known as 'heads,' against the peace and dignity of the Commonwealth of Kentucky.' 'Heads' is a concoction made by mixing harmless liquid with a paint thinner bearing the tradename 'Thinz-All.' Five errors are assigned in appellant's 'Table of Contents and Authorities.' We shall proceed to take up each one without listing them at this point; but before doing so, a brief outline of the facts may be helpful.
There was evidence introduced showing that on May 6, 1967, appellant asked a neighbor, Arthur Griffith, to drive her and her husband, R. B. Brown, to Glidden Paint and Hardware Company on Southland Drive in Lexington, Kentucky, which he did. Griffith testified appellant came out of the paint store with two or three cans of paint thinner.
Clifford Tehbadin, the Glidden store manager, testified he sold appellant three gallons of 'Thinz-All' brand paint thinner on May 6, 1967.
Edward B. Ferrell testified that on this same date he and William Turner went to the residence of appellant to get 'some drinks'; that Turner bought 'some drinks,' 'heads'; that the appellant and her husband had three gallons of 'the stuff'; that he told in the presence of appellant that 'he better watch the stuff,' that he didn't know what it would do, but he knew it was dangerous from the experience (temporary blindness) he had had with it earlier; that William Turner drank 'heads' purchased from appellant.
Ferrell also testified that on the following morning (May 7, 1967) he, William Turner, and Julius Day went back to appellant's place and got some drinks ('heads'), and he, Ferrell, drank some this time. Apparently at that very minute, R. B. Brown lay dead in the house, having died at 'one minute after 6,' at a time when Edward Greenleaf, his wife, and appellant were in the home observing that R. B. 'just laid there and slept' and 'didn't wake up.'
Later on the same day (May 7, 1967) Ferrell and Turner were arrested and placed in the same jail cell. Early the following morning they became violently ill and were removed to Good Samaritan Hospital where Turner died in the emergency room.
Photographs of appellant's premises showed several empty cans with labels denoting various brands of paint thinner. Appellant was not in the painting business.
On May 10, 1967, an investigator purchased a gallon of 'Thinz-All' paint thinner from Glidden of Southland Drive. There was a 'skull and crossbones' on the container with the following admonition printed thereon: 'Danger poison, vapors harmful, may be fatal or cause blindness if swallowed.' A test of this material at the University Medical Center on May 12, 1967, showed that 'Thinz-All' contained 74.4% methanol. Other competitive paint thinners were also analyzed, none of which were found to contain more than 2.84% methanol.
Dr. Wilmer M. Talbert, Jr., head of the Pathology Department at the University Medical Center, supervised the analysis of a blood sample taken from the body of William Turner a short time after his death and found that it contained 'a lethal level of methyl alcohol.'
Appellant did not testify in her case and declined to offer any evidence.
Appellant first argues that the trial court erred in 'failing to grant' her motion for a change of venue.
Her motion was supported by the affidavits of three citizens and by numerous clippings from newspaper reports and editorials, the gist of which related to eight or ten deaths (including Turner's death) of persons from the vicinity of appellant's home, and all of which were the result of drinking 'heads.' The prosecution filed two counter-affidavits of local citizens.
The newspaper reports were published between May 9, 1967, and June 30, 1967. A warrant was issued for appellant May 12, 1967, but she was not indicted until September 21, 1967. On January 31, 1968, the trial court overruled appellant's motion for a change of venue. The case was not tried until July 10, 1968, at which time appellant did not renew her motion for a change of venue or object to the commencement of the trial.
An application for change of venue and supporting evidence must relate to conditions existing at the time of trial. Howard v. Commonwealth, Ky., 395 S.W.2d 355 (1965), cert. denied 384 U.S. 995, 86 S.Ct. 1905, 16 L.Ed.2d 1012. In the Howard case, there was a lapse of less than seven months between the acts complained of and the date of trial, and there was a renewal made on the date of trial of the motion for change of venue. In the instant case, there was neither renewal of motion nor objection, and more than a year had passed when the trial started.
The question whether venue should be changed addresses itself to the sound discretion of the trial court. Kiper v. Commonwealth, Ky., 415 S.W.2d 92 (1967), and Smith v. Commonwealth, Ky., 366 S.W.2d 902 (1962).
Furthermore counsel asked prospective jurors if they had heard or read about the case. There was no response from any of the jurors when asked whether they had formed or expressed an opinion concerning the guilt or innocence of appellant. Appellant did not challenge for cause a single juror.
We conclude there is no merit in appellant's first argument that she was entitled to a change of venue.
Appellant next asserts that the evidence against her was purely circumstantial, for which reason she was entitled to a directed verdict of acquittal.
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