Bynum v. Commonwealth
| Decision Date | 18 April 1933 |
| Parties | Bynum v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
2. Criminal Law. — Statement of commonwealth's attorney, in opening statement to jury in manslaughter trial, that if woman, at whose home killing occurred, testified for defendant, commonwealth would show her bad reputation and untruthfulness, held not improper; such evidence being competent.
3. Witnesses. — Commonwealth held properly permitted to ask its witnesses as to their contradictory statements before grand jury or on former trial (Civil Code of Practice, sec. 596).
4. Criminal Law. — Permitting commonwealth to ask its witnesses about their statements before grand jury or on former trial held not prejudicial to defendant, in absence of substantial difference between their testimony and such statements.
5. Criminal Law. — Questions by commonwealth's attorney as to whether one witness knew that accused was bootlegger and another stated that homicide was most cold-blooded murder he ever saw held improper.
6. Criminal Law. — Commonwealth's attorney's improper questions as to whether one witness knew that accused was bootlegger, and another stated that homicide was most cold-blooded murder he ever saw, held not to warrant reversal of conviction (Criminal Code of Practice, sec. 340).
7. Criminal Law. — Failure to define term "sudden affray" in instruction on voluntary manslaughter held not reversible error.
8. Homicide. — Instruction including words "or in sudden heat and passion," not appearing in indictment for voluntary manslaughter, held not erroneous.
9. Criminal Law. — Instructions should substantially follow language of indictment.
10. Criminal Law. — Technical inaccuracies, not prejudicing accused's rights, in instruction fairly presenting issues, do not authorize reversal of conviction (Criminal Code of Practice, sec. 340).
11. Homicide. — Instruction including words "or in sudden heat and passion," not appearing in indictment for voluntary manslaughter, held not prejudicial to defendant, in view of ample evidence that homicide resulted from "sudden affray" as charged in indictment (Criminal Code of Practice, sec. 340).
Appeal from Fulton Circuit Court.
STEVE WILEY for appellant.
BAILEY P. WOOTTON, Attorney General, and H. HAMILTON RICE, Assistant Attorney General, for appellee.
OPINION OF THE COURT BY CREAL, COMMISSIONER.Affirming.
By verdict and judgment of the Fulton circuit court, Sherman Bynum has been convicted of voluntary manslaughter and his punishment fixed at ten years' imprisonment. He is prosecuting this appeal.
The indictment charges the offense of voluntary manslaughter committed by unlawfully, willfully, feloniously, and in sudden affray shooting, wounding, and killing Bert Owens with a pistol. Since neither the weight nor sufficiency of the evidence is called in question, it will be unnecessary to detail any of the proven circumstances attending the homicide except in so far as they may relate to other grounds argued for reversal.
The grounds argued and relied on for reversal, in substance, are: (1) That the indictment is fatally defective and subject to demurrer; (2) that the commonwealth's attorney made highly improper and prejudicial statements in his opening presentation of the case to the jury; (3) that the court erred in the admission of incompetent evidence; (4) that the court failed to submit to the jury the whole law of the case; and (5) that instruction No. 1 is erroneous and prejudicial.
The indictment is challenged as defective in that it does not use the words "or in sudden heat and passion" in connection with the words "in sudden affray," as is usual in such indictments. As supporting this contention, counsel relies on the case of Commonwealth v. Mosser, 133 Ky. 609, 118 S.W. 915. A careful reading of that case will disclose that while it does use both of the above-quoted terms in referring to a proper indictment for voluntary manslaughter, it does not hold that the use of both terms is necessary to make the indictment good. On the other hand, in the case of Coe v. Commonwealth, 94 Ky. 606, 23 S.W. 371, 15 Ky. Law Rep. 284, it is held that in an indictment for manslaughter the words "in sudden affray" are sufficiently descriptive of the offense charged. In the light of that authority it is apparent that the court did not err in overruling the demurrer to the indictment.
In his opening statement the commonwealth's attorney, among other things, said:
In his assertion that this statement is improper and prejudicial to appellant, counsel cites and relies on the case of Middleton v. Commonwealth, 188 Ky. 247, 221 S.W. 563. In that case it is said in effect that in the statement of the case, the commonwealth's attorney should confine himself to a brief statement of the facts which he expects to develop by proof, and not to comment on the character of witnesses who may or may not be introduced. That case may be easily distinguished because it condemned statements of the commonwealth's attorney that if certain witnesses took the witness stand, the commonwealth would show that they had a criminal record replete with the commission of other felonies in no way connected with the offense for which the accused was being tried and which would not be a proper subject of proof on the trial. Here the commonwealth's attorney was merely making a statement of proof he expected to introduce as to the character of a prospective witness for truth and morality. Clearly such evidence would have been competent.
In the case of Choate v. Commonwealth, 176 Ky. 427, 195 S.W. 1080, 1087, the court disposed of a similar contention, saying:
"* * * Counsel may briefly direct the attention of the jury to all the facts and circumstances which counsel in good faith believes will be allowable to develop in the evidence."
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