Fleming v. Commonwealth
| Decision Date | 25 October 1940 |
| Citation | 144 S.W.2d 220,284 Ky. 209 |
| Parties | FLEMING v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Floyd County; Joe Hobson, Special Judge.
Ed Fleming was convicted of voluntary manslaughter, and he appeals.
Judgment reversed with directions.
Joe P Tackett, of Prestonsburg, for appellant.
Hubert Meredith, Atty. Gen., for appellee.
About dusk on March 3, 1937, three persons, Mr. and Mrs. Dayton Duvall and Dakota Stapleton, were walking south on the right side of Highway U.S. 23 in the village of Harold which is located between Prestonsburg and Pikeville. Stapleton was not with the Duvalls but was some few feet north of them. The appellant, Ed Fleming, was driving a truck on the highway traveling in the same direction in which these persons were walking and drove the truck against them, killing Stapleton and Mr. Duvall and injuring Mrs. Duvall seriously. As a result of a prosecution growing out of this accident appellant was convicted of the involuntary manslaughter of Duvall and served a term in jail. He was tried and convicted in the early part of the year 1940 on an indictment charging him with the voluntary manslaughter of Dakota Stapleton and sentenced to three years in the penitentiary and brings this appeal.
Appellant filed a written plea of former jeopardy, by which he plead that his trial and conviction of involuntary manslaughter in the Duvall case was a bar to this prosecution against him and on this appeal he contends that he was entitled to be discharged on his plea of former jeopardy or that in any event the court was in error in permitting evidence to be introduced showing that Duvall was killed and his wife injured at the time Stapleton was killed. He also contends that the Commonwealth Attorney was erroneously permitted to make reference in his argument to the fact that two people were killed and one injured in the accident.
We find no merit whatever in the contention that the plea of former jeopardy should have prevailed. This court has definitely decided that where one criminal act results in injury to two or more persons the perpetrator of the act may be tried and convicted as a result of the perpetration of the act on each of the injured parties. For instance, in Com. v Browning, 146 Ky. 770, 143 S.W. 407, it was held that where two or more persons were wounded by the same shot the conviction for shooting one was not a bar to a prosecution for shooting the other. The authorities generally seem to be in accord on this proposition.
Nor do we find any merit in the contention that the court should have excluded evidence that other persons besides Dakota Stapleton were injured at the same time for it has been frequently held that where two acts are so nearly connected in point of time that the evidence relating to both cannot be separated upon the trial for the first act, a conviction or acquittal on the first trial is not a bar to the trial for the second act. See Wallace v. Com., 207 Ky. 122 268 S.W. 809, and cases therein cited. Ordinarily, of course, evidence of other crimes is inadmissible but such is not the case when other offenses are so interwoven with the one being tried that they cannot well be separated from it in the introduction of relevant and competent evidence and where two or more crimes are so linked together in point of time or circumstances that one cannot be fully shown without proving the other. Romes v. Com., 164 Ky. 334, 175 S.W. 669; Thomas v. Com., 185 Ky. 226, 214 S.W....
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