Combs v. Com.
| Decision Date | 20 April 1962 |
| Parties | Conrad COMBS, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Vernon Faulkner, Hazard, for appellant.
John B. Breckinridge, Atty. Gen., Joe Nagle, Asst. Atty. Gen., Frankfort, for appellee.
STANLEY, Commissioner.
The appellant, Conrad Combs, was found guilty of maliciously shooting and wounding with intent to kill Fred Nantz and his punishment fixed at ten years' imprisonment. He insists the verdict was flagrantly against the weight of the evidence, or, at most, that the Commonwealth's evidence proved only that he was guilty of the misdemeanor of shooting in sudden affray or heat of passion and the felony instruction should not have been given. Another claimed error is the denial of a new trial on the ground of the discovery that one of the jurors was prejudiced against the defendant and had misled him on voir dire in saying that he would give the defendant a fair and impartial trial.
Combs and his wife ran a restaurant and beer saloon called 'Air Port Inn' in Perry County. About nine o'clock on the night of December 8, 1960, Nantz and Johnny Smith went there as customers. Some trivial wrangle, apparently arising from a misunderstanding, arose between Mrs. Combs and Nantz in regard to putting a coin in a juke box. The spat suddenly flared into violence. She threw an open can of beer in his face, and he retaliated by throwing and hitting her with an open bottle of beer. Thereupon, the defendant Combs, who was behind the counter, shot and seriously wounded Mantz. According to Nantz, he 'scooted down' on the floor and while trying to crawl out the door, Mrs. Combs grabbed his hair, and called upon her husband to shoot and 'kill the son-of-a-bitch; he hain't dead yet.' Combs came around the counter and tried to fire, but his pistol jammed. He then heeded Nantz's cry, 'You needn't shoot me no more; you've done already killed me.' While this was going on Mrs. Combs was beating him in the face with her fists. This graphic story was corroborated, except in some unimportant particulars, by Johnny Smith.
The defendant Combs testified that he had had a little previous trouble with Nantz; that on this occasion Nantz precipitated the dispute with his wife and first threw the bottle of beer, splashing it in her hair, before she retaliated with the same liquid missile; that when he looked around he saw Nantz jerk his coat back and pull something bright from under his belt which he, the defendant, took to be a pistol. Combs testified that 'in a state of fury I shot him in self-defense.' He denied many of the details of the melee related by Nantz. Mrs. Combs and her niece substantially corroborated the defendant.
There was no evidence that Nantz had a pistol in the restaurant. Police officers found his pistol in his truck, which was parked in a nearby service station.
The appellant contends, as stated above, that the Commonwealth's proof did not show the shooting was maliciously done, i.e., with premeditation or through enmity or ill will, or was done feloniously, i.e., actuated by a deliberate evil purpose to commit a crime. While that is a common acceptation of the terms, in their legal sense 'malice' and 'malicious' mean doing a wrongful act by one person against another intentionally or with evil intent without just cause or excuse or as the result of ill will. It is immaterial at what time before the act such determination was formed. Malice may be implied or imputed from the proven act and circumstances. Brown v. Commonwealth, 226 Ky. 255, 10 S.W.2d 820; Risner v. Commonwealth, Ky., 242 S.W.2d 623; Wright v. Commonwealth, Ky., 335 S.W.2d 930. The use of a deadly weapon, not in self-defense, is evidence of malice. Crawford v. Commonwealth, 279 Ky. 224, 130 S.W.2d 17. 'Feloniously,' as a term in criminal law, really means done with an intent to commit a crime or wrong, although it is sometimes stated as meaning proceeding from an evil heart or purpose. Ewing v. Commonwealth, 129 Ky. 237, 111 S.W. 352; Taylor v. Commonwealth, 172 Ky. 136, 188 S.W. 1087.
The question of whether an act was committed maliciously and feloniously is ordinarily one for the jury to determine in the light of all the surrounding facts and circumstances. Nichols v. Commonwealth, Ky., 283 S.W.2d 184; Davidson v. Commonwealth, Ky., 340 S.W.2d 243.
The evidence does indicate that the shooting of Nantz by Combs was sudden and in heat of passion and, as he testified, 'on the spur of the moment.' Yet, Combs followed the shooting up by going around the service counter and trying to shoot the victim...
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