Commonwealth v. Saylor

• Decision Date: 03 December 1913
• Citation: 156 Ky. 249,160 S.W. 1032
• Parties: COMMONWEALTH v. SAYLOR.
• Court: Kentucky Court of Appeals

160 S.W. 1032

156 Ky. 249

COMMONWEALTH v. SAYLOR.

Court of Appeals of Kentucky.

December 3, 1913

Appeal from Circuit Court, Magoffin County.

Dennie Saylor was indicted for murder, and the jury failed to agree. From the mistrial, the Commonwealth appealed to settle the law. Opinion certified as law of case.

James Garnett, Atty. Gen., W. H. May, of Prestonburg, Byrd &amp Nickell, of Lexington, and W. R. Prater, of Salyersville, for the Commonwealth.

MILLER J.

At the February term, 1913, of the Magoffin circuit court the defendant, Dennie Saylor, was indicted for the murder of Mack Bailey. The indictment contained two counts: One charging willful murder; the other charging him with conspiring with Bud Collins to kill Bailey. A separate indictment was returned against Collins, but he made his escape, and has never been apprehended. Saylor was tried at the May term 1913, but the jury failed to agree upon a verdict. Upon the trial the court gave an instruction covering the law of murder, and the attorney for the commonwealth asked the court to further instruct the jury upon the law of voluntary manslaughter; but the court refused to do so. The commonwealth has appealed from that ruling for the purpose of settling the law upon that question.

The commonwealth contends that the proof clearly shows a concerted action between Collins, who killed Bailey, and Saylor, who was Collins' companion at the time.

In criminal prosecutions it is the duty of the trial judge to give the whole law of the case; and in doing so he should instruct upon every view of the case presented by the evidence.

The failure or refusal to charge on manslaughter in a prosecution for murder, where the evidence was such that the crime might have been manslaughter, is error. Wharton on Homicide (3d Ed.) 165.

The propriety, therefore, of the ruling of the circuit judge in refusing to give an instruction upon the law of voluntary manslaughter depends upon whether there was evidence from which a verdict for manslaughter might have been found.

In the section above quoted from, Wharton further says that any evidence tending to show the absence of malice entitles the accused to an instruction upon manslaughter, as, for instance, evidence that the accused was drunk at the time of the killing.

Blackstone's definition of voluntary manslaughter as being "the unlawful intentional killing of another without malice," was approved by this court in Montgomery v Commonwealth, 81 S.W. 264, 26 Ky. Law Rep. 358, and in that opinion we further said: "It is essential to the commission of voluntary manslaughter that the homicide should have been willfully and intentionally committed, or under such circumstances as to strike one, at first blush, as so reckless and wanton as to be felonious, though apparently not intended by the perpetrator. The entire criminal law is pervaded by this doctrine."

And, in Wheeler v. Commonwealth, 120 Ky. 708, 87 S.W. 1109 27 Ky. Law Rep. 1090, where Wheeler, the abettor, was jointly indicted with others for the murder of Maxfield, and complaint having been made against the instruction given upon voluntary manslaughter, the court cited Montgomery v. Commonwealth, supra, and said: "In addition to what is expressed in the instruction complained of, it should have been so worded as to inform the jury that, in order to find the appellant guilty as aider or abettor in the killing of Maxfield, they must believe from the evidence, beyond a reasonable doubt, not only that the homicide was willfully and feloniously committed by his co-defendants, or some of them, in a sudden affray, or in sudden heat and passion, without previous malice, and not in their necessary, or apparently necessary, self-defense, but also that appellant was at the time present, aiding, abetting, advising, or assisting them in the commission of the crime."

In Greer v. Commonwealth, 111 Ky. 93, 63 S.W. 443, 23 Ky. Law Rep. 489, where Greer had been indicted for the murder of Thomas by compelling him to drink unusually large quantities of whisky and wine, by beating and bruising him, by burning him with fire, and by dragging him over the ground with a rope tied around his neck, the court, in discussing the question of manslaughter in connection with that case, used the following language: "In testing instructions, every deduction which the jury might have been authorized to make from the testimony must be assumed as a proven fact. Farris v. Com., 14 Bush, 362; Bush v. Com., 78 Ky. 268. If the defendant unlawfully and unintentionally killed the deceased, but without malice, he was guilty of voluntary manslaughter. The jury might have so found from the facts proven. Therefore we are of the opinion that the court should have given an instruction on voluntary manslaughter, drawn to suit the facts which were proven in the case."

And in the late case of Tucker v. Commonwealth, 145 Ky. 84 140 S.W....