Farley v. Commonwealth

• Decision Date: 22 November 1940
• Parties: FARLEY v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

145 S.W.2d 100

284 Ky. 536

FARLEY v. COMMONWEALTH.

Court of Appeals of Kentucky

November 22, 1940

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

Earl (Buck) Farley was convicted of voluntary manslaughter, and he appeals.

Affirmed.

F. M Jones, of Harlan, for appellant.

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

THOMAS Justice.

At the trial of an indictment returned by the grand jury of Harlan County accusing him of murdering David Sullins, the appellant, Earl Farley, was convicted of voluntary manslaughter and punished by confinement in the penitentiary for 21 years. From the judgment pronounced on the verdict after his motion for a new trial was overruled he prosecutes this appeal. The errors complained of and relied on for a reversal as classified in brief of appellant's counsel relate solely to the instructions of the court to the jury wherein it is argued that the self-defense and the reasonable doubt instructions were faulty and misleading, and also that the court should have instructed the jury "on the nature of the confession of appellant." No other objections are contained in the classification; although it is argued in the body of the brief that the court should have directed an acquittal upon the ground of uncontroverted proof (as alleged) that the killing of the deceased by defendant was excusable under the exercise of his right of self-defense. We will first dispose of the objections to the instructions.

The self-defense instruction says: "If the jury shall believe from the evidence that at the time the defendant shot Sullins, if he did so, he in good faith believed, and had reasonable grounds to believe, that he was then and there in danger of death, or the infliction of some great bodily harm at the hands of said Sullins, and there appeared to defendant, in the exercise of a reasonable judgment at the time and under the circumstances, no other safe means of averting the danger, either real or to him apparent, except to shoot, wound or kill said Sullins, the jury will find the defendant not guilty." The criticism directed to it is in the use of the words "no other safe means of averting the danger," and the only case cited in support thereof is Lindon v. Commonwealth, 257 Ky. 746, 79 S.W.2d 202, 204. In that case the self-defense instruction was couched in language substantially the same as the given one in this case, except the word "safe" was qualified by the insertion of the immediately preceding word "reasonable." We criticised the use of that qualifying word in this manner: "The complaint directed to the above instruction is to the word 'reasonable' modifying the word 'safe.' It is argued that the word 'safe' being modified by the word 'reasonable' required appellant to choose an alternative method of escaping danger unless it promised absolute safety. In Tompkins v. Commonwealth, 117 Ky. 138, 77 S.W. 712, 25 Ky.Law Rep. 1254, a similar instruction was held by this court to be erroneous and that the word 'reasonable' modifying the word 'safe' was a qualifying word and a limitation upon the judgment of the accused as to his right to act in self-defense."

We found no other objection to the instruction therein complained of, and which, we repeat, was and is the same, in substance, to the one herein given by the court and criticised by counsel with the exception of the qualifying word which we held should be omitted for the reasons stated in the inserted excerpt from that opinion. An examination of cases cited in the notes to section 891 of the recent work of Stanly on "Instructions to Juries" will reveal that considerable discussion (more or less confusing and many times extremely technical) has been indulged in by this court as to the propriety of the use of the word "safe" when employed in the self-defense instruction, but an analysis of the opinions--practically, if not all of which are cited in the notes supra--will disclose that when the "safe means of escape" are those which appeared to the defendant in the exercise of a reasonable judgment on his part, then the phrase "safe means of escape" is not forbidden or erroneous because the safety of the means is made applicable to that which appeared to defendant in the exercise of his reasonable judgment in the immediate circumstances. It was not so in the given instruction in the Lindon case because it was left to the jury and not to the defendant to determine as to whether or not the means employed by the defendant (i.e., the killing of the victim) was or not reasonable, and it was for that reason alone that the instruction was held to be erroneous to the prejudice of the defendant in that case. Therefore, the only cases relied on to sustain the criticism now under consideration is insufficient for that purpose.

The criticised reasonable doubt instruction in this case says: "The jury are instructed that if there be a reasonable doubt of the defendant's being proven to be guilty, he is entitled to an acquittal." It is difficult to discover from the brief the precise objection to that instruction, since all that is said in brief in support of it is that "The instructions in the case at bar may have embodied the reasonable doubt idea, but they are confusing"--the plural pronoun "they" being employed because the same character of reasonable doubt instruction was given in directing the jury the degree of the homicide that it should return if it convicted defendant but entertained a reasonable doubt as to which degree is proven. Section 238 of our Criminal Code of Practice says: "If there be a reasonable doubt of the defendant being proven to be guilty, he is entitled to an acquittal." The criticized instruction in this case is couched in that verbatim language and the notes to that section of the Criminal Code, Baldwin's 1938 Revision, are crowded with the citation of cases sustaining reasonable doubt instructions couched in the identical language of the Code section--three of the latest of which are, Shrout v. Commonwealth, 226 Ky. 660, 11 S.W.2d 726; Mink v. Commonwealth, 228 Ky. 674, 15 S.W.2d 463, and Nickells v. Commonwealth, 241 Ky. 159, 43 S.W.2d 697. It is, therefore, clear, that the criticism of the reasonable doubt instruction is also without merit.

The third and last criticism of the instructions--as argued by counsel for a reversal of the conviction of his client--is in its entirety, that "The court also failed to instruct the jury on the nature of the confession of Farley made at the New Harlan Hotel; the question was raised as to whether the statement contained all that Farley said on that occasion, and whether it contained statements he did not make, and this question should have been submitted to the jury by proper instructions." We have had difficulty in trying to comprehend the exact meaning of that complaint, and which is not elucidated by anything found in either brief or record. Later, on the day of the killing, which occurred at about 1 o'clock A.M. on July 27, 1939, appellant was arrested in Evarts, Harlan County, Kentucky, and brought to the city of Harlan and placed under guard in a hotel where he, according to the undisputed proof, made a statement as to what happened at the time of the homicide and the circumstances under which it was committed, and which corresponds exactly with the testimony he gave on his trial, except on the latter occasion he testified that before he shot and killed deceased the latter placed his right hand on his (defendant's) shoulder immediately following which he (defendant) "stepped back" some two or three steps and began shooting. The written statement made, signed (and duly witnessed) by defendant at the hotel following his arrest did not contain the fact of decedent placing his hand on defendant's shoulder, and it would appear from the excerpt, supra, taken from counsel's brief (which is all it contains on the subject) that it was the duty of the court to give some sort of instruction with reference to the conflict between the written statement by defendant at the hotel and his testimony as given on the trial, but what such an instruction should contain, or to what point it should be...