Embry v. Commonwealth

• Citation: 236 Ky. 204
• Parties: Embry v. Commonwealth.
• Decision Date: 25 November 1930
• Court: United States State Supreme Court (Kentucky)

236 Ky. 204

Embry v. Commonwealth.

Court of Appeals of Kentucky.

Decided November 25, 1930.

1. Homicide. — Person causing death by act so heedless and incautious as to be unlawful and wanton, although without express mischievous intent, commits manslaughter.

2. Homicide. — Death from wanton and reckless or grossly careless act justifies conviction of "voluntary manslaughter;" "involuntary manslaughter" involving only ordinary negligence.

3. Homicide. — Whether throwing blasting powder into fireplace was wanton and reckless, and defendant knew or had reasonable grounds to believe it endangered life, held for jury.

4. Homicide. — Death resulting purely from accident or misadventure is "excusable homicide," creating no criminal responsibility.

5. Homicide. — Essential elements of "homicide by misadventure" are absence of intent to harm, lawfulness of act causing death, and proper precaution to avoid mischief.

6. Homicide. — Defendant, who threw blasting powder into fireplace, was not entitled to instruction on accidental killing, not being free from negligence, or engaged in lawful act.

Evidence showed that defendant's throwing powder into fire caused explosion, which filled house with smoke and started fire, in which 19 year old boy, who was near corner of room, and wife of owner of house, who was in doorway leading into another room, were burned to death.

7. Homicide. — Generally, contributory negligence is not available as defense to prosecution for manslaughter by negligence.

8. Homicide. — In determining whether negligence of defendant, who threw blasting powder into fireplace, proximately caused death in fire following explosion, conduct of deceased and attendant circumstances could be considered.

9. Homicide. — Defendant, who threw blasting powder into fireplace, causing fire, held not entitled to instruction on contributory negligence, absolving him if victims failed to exercise ordinary care to escape.

Appeal from Grayson Circuit Court.

ELMER H. HICKS for appellant.

J.W. CAMMACK, Attorney General, and SAMUEL B. KIRBY, JR., Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE CLAY

Affirming.

Stanley Embry appeals from a judgment convicting him of voluntary manslaughter, and fixing his punishment at two years' confinement in the penitentiary.

One evening in October, 1929, appellant went to the home of J.N. Meredith, in Grayson county. While there, a can containing about 20 pounds of blasting powder that had been at the Meredith home for several months was brought into the room where several members of the Meredith family and others, including appellant, were present. A fire was burning in the fireplace and presently appellant picked up the can of powder, held it under his arm, and poured some of it into his hand. A young son of J.N. Meredith asked for some of the powder, but his father refused to permit him to take any. J.N. Meredith took some of the powder from appellant, tasted it and threw two or three grains into the fire. Appellant then threw some of the powder in his hand into the fire, and it fell in behind the back log. He then threw a big handful of powder into the fire and an explosion occurred. The explosion filled the house with smoke and set it on fire. Lee Meredith, a 19 year old son of J.N. Meredith, was near the corner of the room, and Mrs. Meredith, wife of J.N. Meredith, was in the doorway leading into another room. Several of those present, including appellant, were more or less burned by the explosion, but they managed to get out of the building. Mrs. Meredith and Lee Meredith, who failed to make their escape, were burned to death.

Though we have not had occasion to consider a case involving the same or similar facts, the applicable principle of law is well settled. Thus it is said in 1 Russell on Crimes, book 3, c. 2, sec. 4, p. 636: "There are many acts so heedless and incautious as necessarily to be deemed unlawful and wanton, though there may not be any express intent to do mischief, and the party committing them and causing death by such conduct will be guilty of manslaughter." To the same effect is York v. Commonwealth, 82 Ky. 360, where we laid down the rule that, where one intentionally does an act in such a reckless and careless manner that it is calculated to endanger human life, and death ensues, he is guilty of manslaughter, although the death of the person killed may not have been intended. The rule has been applied where a man intentionally, and in a wanton, careless, and reckless manner, fired a pistol in a public street and thoroughfare of a town, and thereby shot and killed another, Sparks v. Commonwealth, 3 Bush, 111, 96 Am. Dec. 196, and to a case where death...