Cowan v. Com.

• Decision Date: 28 October 1966
• Citation: 407 S.W.2d 695
• Parties: William COWAN (William D. Cowen), Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 695

407 S.W.2d 695

William COWAN (William D. Cowen), Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Oct. 28, 1966.

Walter B. Smith, Shelbyville, for appellant.

Robert Matthews, Atty. Gen., Harold T. Hotopp, Asst. Atty. Gen., for appellee.

PALMORE, Chief Justice.

The appellant, William David (Willie) Cowen, was indicted for murder with two previous felony convictions. He appeals from a judgment entered pursuant to a verdict finding him guilty of involuntary manslaughter and prescribing a sentence of 12 years in prison. KRS 435.022(1).

The evidence presented a substantial case of self-defense, and the first question before us on the appeal is whether Willie was entitled to a directed verdict on that basis.

The fatal event took place near the corner of 10th and Union Streets in Shelbyville. 10th Street runs north and south and Union Street intersects it from the west. A place of business called the Rendezvous Club fronts on 10th Street at the southwest corner, and a barber shop was located across Union Street at the northwest corner. The decedent, Jesse Shouse, a large and powerful man, was one of several persons present on the barber shop corner when Willie Cowen emerged from the Rendezvous and started to go around to his car, which was parked on the south side of Union Street. Upon seeing Willie, Shouse immediately walked across Union Street and accosted him. After a brief conversation Shouse struck Willie on the face or head with his fist and knocked him to his knees. Willie attempted to scramble away and retreated across to the east side of 10th Street with Shouse in hot pursuit. Willie then drew a pistol from his coat pocket and fired it twice in close sequence. The second shot hit Shouse in the midsection, and he later died from its effects.

Willie testified that he fired the first shot as a warning, missing on purpose. He did not issue a spoken warning. At the moment of the second shot the two men were, according to various estimates, between 3 1/2 and 10 feet apart, facing each other. Some witnesses said Shouse stopped when the first shot was fired, while others, including Willie, said he continued to advance. Shouse was not armed.

The rapid succession in which the two shots were fired is a circumstances from which a jury might reasonably infer (1) that the first shot was not intended as a warning and (2) that it did not in fact accomplish the purpose of a reasonable warning in that Shouse was not given any time to respond to it. Granting the extreme closeness of the case, nevertheless we are of the opinion that the evidence does not establish as a matter of law that the apparent necessity (to Willie) of shooting Shouse was reasonable. See Martin v. Commonwealth, Ky., 406 S.W.2d 843 (decided October 7, 1966).

Obviously in an effort to insure infliction of a life penalty in the event Willie should be found guilty of culpable homicide in a lesser degree than murder, the grand jury charged two previous felony convictions, one in 1949 for driving a car without the owner's consent (KRS 433.220) and the other in 1952 for carrying concealed a deadly weapon (KRS 435.230). These were proved in chief through the circuit court clerk and county attorney. Then, after Willie had taken the witness chair in his own defense and had been cross-examined, the Commonwealth's Attorney renewed the interrogation for 'Just one question. Tell this jury whether or not you have ever been convicted of a felony.' An objection was overruled, and over further remonstrances the prosecution was permitted to extend its 'one question' into an examination that covers four pages of the transcript and consisted entirely of obtaining confirmation of the two convictions theretofore proved and admission of two others, together with the respective sentences imposed in the various instances. At the end, the trial court admonished the jury that proof of the prior convictions could be considered only as affecting the witness's credibility.

It is a procedural rule of evidence that a witness, including a defendant who testifies for himself in a criminal case, may be impeached by proof that he has been convicted of felony. CR 43.07, formerly Civil Code § 597; RCr 13.04. Because the rule expressly allows it to be accomplished by introduction of the record, this court always has conceded the Commonwealth's right to elicit from the witness such details as would be disclosed by the record of conviction if it were introduced. Cf. Hannah v. Commonwealth, 220 Ky 368, 295 S.W. 159, 160 (1927). This is the technical theory through which the prosecution is able to escape being confined to a mere showing that the witness has been convicted of a felony, without further elaboration.

Recognizing that no admonition can really assuage the prejudice that is done to a defendant on the merits of his case by disclosure of past felonies in the name of impugning his credibility, we are gravely troubled by the great latitude with which this courtroom device has come to be used in criminal trials. It is unnecessary and it is unfair. In this particular instance there is a reasonable probability that it was a factor in the paradoxical verdict finding Willie Cowen guilty of involuntary manslaughter. As in Martin v....