Brown v. Com.
| Decision Date | 23 November 1960 |
| Citation | 340 S.W.2d 471 |
| Parties | L. C. BROWN, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Wm. R. Forester, Barbourville, for appellant.
John B. Breckinridge, Atty. Gen., Ray Corns, Asst. Atty. Gen., for appellee.
Appellant, L. C. Brown, was jointly indicted with James T. Hobbs for the wilful murder of John D. Carnes, a 76-year-old man. Appellant moved for a severance, was tried separately in November, 1959, found guilty of voluntary manslaughter, and sentenced to 21 years and a day in the penitentiary. On this appeal Brown urges a reversal on two grounds: (1) He was entitled to a directed verdict; and (2) the court failed to instruct the jury on the whole law of the case.
Carnes was killed at his home on the left fork of Turkey Creek in Knox County on Sunday, June 28, 1959, between 10:00 and 10:30 a. m. Appellant, who is married to the sister of his co-defendant, Hobbs, then lived in a tenant house owned by Carnes and located from 200 to 225 yards above the creek and to the left to the Carnes residence. Appellant had made his home at this location for more than 18 months and was on good terms with Carnes up until the time of the latter's death.
Appellant and his witnesses gave this account of his activities on Saturday, June 27th, and on Sunday, June 28, 1959:
Appellant borrowed his father's green 1948 Oldsmobile in the afternoon of the Saturday mentioned and drove to the home of one Lizzie Mills on Straight Creek in Bell County, a distance of approximately 30 miles from where he lived. He arrived in the late afternoon on Saturday, stayed with Lizzie Mills that night and did not depart until 11:00 or 11:30 on Sunday morning. On Saturday night a party got into full swing at the Mills home at which much drinking and carousing took place, and this lasted until practically dawn. At about 12:30 a. m. Sunday morning Hobbs appeared on the scene and remained until about 2:30 a. m. when he was sent back to appellant's home for more whiskey; but Hobbs did not return. Appellant and Lizzie Mills left her home on Sunday morning, went down Straight Creek to see her son for 30 or 40 minutes, and then on to visit her mother for a short time.
When appellant finally set forth from Straight Creek he traveled first to the home of Hobbs, where he undertook to locate him, and afterwards he returned toward Turkey Creek. He left his car at one Lester Broughton's and walked from the latter's house up the creek toward his residence. Before he came to his home and when he was 200 yards below the place where Carnes lived, appellant met Hobbs coming from the opposite direction. We quote this excerpt from his testimony in this connection:
Appellant reached his home about 12:00 or 12:30 o'clock, found his family was unharmed, and then began to suspect that Carnes had become a victim of foul play at the hands of Hobbs. However, recalling the threat Hobbs had made earlier, he was at first afraid to go to the Carnes house to check up on the situation. He ate a quick lunch and then drove to his father's house 10 miles away to return the car. He stayed there until about 4:30 p. m. and was driven home by his brother. He next got his mule and watered him. Then he decided to go down the creek and let the animal graze on the grass in Carnes' yard. When he arrived at his destination he caught sight of Carnes' hat on the floor of the porch and 'hollered' for him. Receiving no answer and suspecting there had been bloodshed, he went for some of his neighbors, a quarter of a mile away. Several men came back with him, entered the house and found Carnes lying in a pool of blood, showing signs of having been beaten to death. Appellant then drove a neighbor's truck to Barbourville and got the sheriff, the undertaker and the coroner.
On the next day, appellant told the sheriff that Hobbs had committed the crime. The sheriff, observing spots on appellant's overalls (which later proved to be discolorations made by tobacco juice) and thinking they were blood stains, arrested appellant. (One mark on appellant's shirttail, approximately one-fourth of an inch square, turned out to be blood, but it was never determined to be the same type as Carnes'.) On this same day Hobbs was arrested in Clay County. He had in his possession a shotgun belonging to Carnes and was wearing crepe sole shoes, similar to the ones that had made tracks which were found in the blood on the floor of the Carnes house.
After his arrest, Hobbs Made a statement which tended to implicate appellant with Carnes' death. This is a summary of what he told the peace officers:
On Sunday morning, about 10:00 o'clock, he went by appellant's home, the latter having not yet arrived from Straight Creek, and then began his journey out of Turkey Creek hollow. Presently he drew up in front of the Carnes home, noticed Carnes sitting on the porch and went up to offer him a drink of moonshine whiskey. Hobbs himself has been drinking heavily and was, as he expressed it, feeling 'tight.' Shortly thereafter Carnes requested Hobbs to accompany him into the house and there he opened his trunk presumably to show Hobbs a paper of some description. Suddenly and without warning, Carnes struck out with a reap hook and cut Hobbs' hand. Hobbs retaliated by striking him once with a 'crock' (which turned out to be a granite pitcher) and twice with his fists, all three blows landing on the head and face. Hobbs next shoved Carnes, whose nose was bleeding freely, on to a bed in the room and then went out to the porch.
When he got outside he saw appellant standing at the well 20 or 30 feet away and Hobbs walked out and talked to him. Soon Hobbs began to feel sick, returned to the porch and lay down. About this time Carnes appeared on the porch and approached Hobbs. At this juncture, according to Hobbs' testimony, Carnes gave out one scream and Hobbs passed out. When he recovered consciousness 'two or three hours later' he found Carnes dead and the house was torn up.
The body was in a different room from the one where Hobbs and Carnes had fought. He went through all the rooms, took Carnes' shotgun and left. He proceeded to his car, put the...
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