Damron v. Com.

• Decision Date: 29 May 1958
• Citation: 313 S.W.2d 854
• Parties: P. Y. DAMRON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 854

313 S.W.2d 854

P. Y. DAMRON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

May 29, 1958.

J. Gordon Lisanby, Princeton, for appellant.

Jo M. Ferguson, Atty. Gen., Wm. F. Simpson, Asst. Atty. Gen., for appellee.

MOREMEN, Chief Justice.

Appellant, P. Y. Damron, was convicted of maliciously striking and wounding Eugene Quertermous with a knife, a deadly weapon, with the intent to kill him, from which act death did not ensue--an offense denounced by subsection (2) of KRS 435.170. He was sentenced to confinement in the penitentiary for three years.

On the night of August 4, 1956, a number of people had assembled at Conyer's Truck Stop where a dance or musical was in progress. Before the evening was over, incidents occurred which involved members of the Damron and Quertermous families, and others.

The evidence produced by the two factions is collisive, but the witnesses agree that Raymond Watson and Jimmie Damron, a 15 year old son of appellant, engaged in horseplay. Jimmie Damron was struck in the stomach, cried, and reported the matter to his parents. Watson went to where P. Y. Damron, Jimmie Damron and others were standing and told appellant that he and young Damron were only playing and he intended no harm. At that time Eugene Quertermous approached the the group.

From this point on, the testimony is sharply in contrast. Eugene Quertermous testified:

'I started back to my car and got to the back end of it and seen Raymond and P. Y. (Damron) standing there, and I said 'watch it P. Y.' and started on to the car, and he struck me on the arm, I threw my arm up and he hit me on the arm. He kept swinging and backed me clear to the gas pumps, about a hundred yards or more from where my car was at, and a boy ran in front of us and stopped us.'

His version was supported by other witnesses.

Quertermous also stated that he did not know immediately that he had been wounder--he thought that his arm had been paralyzed by a blow--and had seen no knife or other instrument in Damron's hand. Upon discovery of the injury, he was taken to a doctor and later removed to a veterans' hospital. He has little use of his hand now.

According to appellant and witnesses introduced by him, there had been a previous encounter between them. Appellant testified:

'He ran off up in the crowd, several, and was standing back up there cursing me and calling me a God Damn son-of-a-bitch and all, and I said 'Now I will leave you alone,' and I started toward the car and walked three or four steps and met Raymond Watson and he commenced talking and said that 'we didn't mean anything; we were not mad' and I never said anything, and my wife hollered and said 'Duck Jim, he'll kill you.' The Quertermous boy had come out of the crowd at the back of me and the boy, and hit at him with a pair of knucks.'

He also testified that it was his son Jimmie who hit at Quertermous with a knife but he qualified it by saying he did not see him do it. Jimmie, however, testified that upon being attacked, he drew his pocket knife and cut Quertermous. We must emphasize the fact that while the prosecution had no one who definitely said that he saw appellant use the knife, their version of the happening was such that if their testimony is believed, no one but P. Y. Damron could have done that cutting. The testimony offered in behalf of the defense was to the effect that Damron did not injury Quertermous, but that his son did. Under this conflict of testimony we believe it clearly to be a question for the jury to decide.

Appellant contends, however, that the facts disclose that appellant acted in sudden heat and passion and without previous malice and, at most, should only have been found guilty under instruction No. 3 which submitted the question as to whether he had violated the provisions of KRS 435.180, a misdemeanor. It is appellant's contention that no malice was shown and, therefore, under the evidence, no conviction could properly be had under subsection (2) of KRS 435.170.

Malice in...