Dotson v. Commonwealth

• Decision Date: 27 September 1940
• Citation: Dotson v. Commonwealth, 283 Ky. 825, 143 S.W.2d 517 (Ky. Ct. App. 1940)
• Parties: DOTSON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

143 S.W.2d 517

283 Ky. 825

DOTSON v. COMMONWEALTH.

Court of Appeals of Kentucky

September 27, 1940

Appeal from Circuit Court, Harlan County; J. S. Forester, Judge.

Ike Dotson was convicted of voluntary manslaughter, and he appeals.

Affirmed.

Rose &amp Rose, of Harlan, for appellant.

Hubert Meredith, Atty. Gen., and Wm. F. Neill, Asst. Atty. Gen., for appellee.

THOMAS Justice.

At his trial of an indictment by the Harlan County Grand Jury accusing him of murdering Lawrence La Fevers, the appellant Ike Dotson, was convicted of voluntary manslaughter and punished by confinement in the State Reformatory for a period of ten years. His motion for a new trial was overruled, and on this appeal therefrom his counsel argue but one ground for a reversal, and which is that the court should have given the jury an instruction on involuntary manslaughter. Other alleged grounds are contained in the motion for a new trial but they are abandoned in this court and sole reliance is made on the failure of the court to give the instruction referred to. An examination of the record fully justifies the abandonment of the other grounds contained in the motion for a new trial, since we find nothing in the record to sustain them. The opinion will therefore be directed exclusively to a consideration of the only ground relied on by counsel for a reversal of the judgment.

The affray or assault, during which the fatal blow administered to the deceased was given, occurred in a restaurant operated by one Collett in the town or village of Molus, in Harlan County, Kentucky, between 8:00 and 9:00 oclock P. M., March 1, 1940. The building was about thirty or thirty-five feet long and twenty or twenty-five feet wide, and, besides the restaurant business conducted therein by Collett, he also dispensed both soft and hard drinks, and at the time of the difficulty here involved, and for sometime prior thereto on the fatal evening, the house was quite well filled with patrons of the place, some of whom engaged in dancing by music furnished by a provided victrola--all of which furnished a complete setting for the eventual homicide that followed. The accused and his victim entered the building together some thirty minutes or more before the fatal difficulty, but whether or not they came to the village together is not disclosed. They stationed themselves after entering the building at different places in the room, and while defendant was sitting at a table--perhaps imbibing some kind of drink--the deceased approached it, or him, with a knife, but did not succeed in getting to him. When defendant discovered the approaching of deceased, he drew from his hip pocket his 38 special pistol and presented it on the deceased, who in the meantime had been taken in charge by a witness who testified in the case by the name of Chitwood, and the latter, with the assistance of others, started with him towards the door with the intention of putting him out of the house; but when they got to the door he refused to accept the suggested exit and remained in the building, but in the meantime he had closed his knife and put it in his pocket, followed by his leaning against a counter or showcase in the front end of the building in a more or less extreme state of intoxication.

At that juncture defendant started towards the place where deceased was standing with the intention, as he testified, of leaving the building from the front entrance near which the deceased was located surrounded by Chitwood and others forming a crowd which took up some portion of the space leading to the door; but there is nothing to show but that plenty of room existed for defendant to pass the crowd without molesting the deceased. Instead, however, he manifested, by his words and acts from the time he started towards deceased with his drawn pistol, very pronounced viciousness and went direct to his victim and struck him a vicious blow on the head with his pistol at the back of the ear near the base of the skull, but which did not, according to the proof, cut any gash or draw blood at the time. Shortly thereafter defendant and deceased left the building together and they were gone some ten minutes when they returned and intermingled with the crowd until they saw proper to depart for home. After the return of the two to the building the testimony discloses no further trouble but on the contrary apparent friendliness between the two.

Defendant testified that he had no intention of inflicting upon the deceased any harm when he left his seat in the rear of the building with his drawn pistol and started to the front door nor did he intend to engage in any sort of affray in passing the point where deceased was standing; but that as he reached that point deceased drew his knife and, perhaps, made demonstrations to use it on defendant and to prevent him from doing so, and in the exercise of his right of self-defense, he struck deceased with his pistol and that he had no other intention except to defend himself by preventing deceased from using the knife on him and that he had no intention of producing death. However, some four or five or possibly more witnesses (and in fact every other witness who testified in the case except defe...