Fugate v. Com.

• Decision Date: 03 October 1969
• Citation: 445 S.W.2d 675
• Parties: Lonnie FUGATE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 675

445 S.W.2d 675

Lonnie FUGATE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Oct. 3, 1969.

Courtney C. Wells, Hazard, for appellant.

John B. Breckinridge, Atty. Gen., Frankfort, Joseph Eckert, Asst. Atty. Gen., for appellee.

PALMORE, Judge.

At about dusk on April 7, 1968, Bernis Campbell was struck and killed by a motor vehicle moving northward on Kentucky Highway 267 in Perry County. There were no eyewitnesses other than the occupant or occupants of the vehicle involved, which evidently left the scene without stopping. On the basis of testimony by witnesses who saw Lonnie Fugate's truck shortly before the incident happened, together with other circumstantial evidence, and an admission made by Fugate later in the same evening that he had run over and killed a man, a jury found Fugate guilty of involuntary manslaughter in the first degree and fixed his sentence at five years in the penitentiary. KRS 435.022(1). He appeals, contending the evidence was not sufficient to justify finding him guilty of the offense.

At the trial Fugate denied any knowledge of or involvement in the accident and disavowed the inculpatory statements and conduct attributed to him by witnesses for the Commonwealth.

The indictment charged Fugate with voluntary manslaughter (KRS 435.020) by operating a motor vehicle in a 'negligent, reckless, careless and wanton manner,' causing Campbell's death. Though formerly recognized as a species of voluntary manslaughter, the crime of causing the death of another by reckless and wanton conduct was reduced to involuntary manslaughter of the first degree by the enactment in 1962 of KRS 435.022, and the instruction under which Fugate was found guilty was drawn in conformity with that statute.

Before 1962 there were three degrees of unintentional homicide by negligent operation of a motor vehicle: (1) voluntary manslaughter by 'reckless and wanton' conduct; (2) involuntary manslaughter by gross negligence; and (3) the statutory crime of homicide by ordinary negligence, KRS 435.025. Stephens v. Com., Ky., 356 S.W.2d 586, 587 (1962).

There are still three degrees of unintentional homicide by negligent operation of an automobile, the first two of which have been redefined by statute. They are: (1) involuntary manslaughter in the first degree, through causing the death of another 'by an act creating such extreme risk of death or great bodily injury as to manifest a wanton indifference to the value of human life according to the standard of conduct of a reasonable man under the circumstances,' KRS 435.022(1); (2) involuntary manslaughter of the second degree, through causing the death of another 'by reckless conduct,' KRS 435.022(2); and homicide by ordinary negligence, KRS 435.025.

The instructions given in this case covered all three degrees, but since the verdict was returned under the first degree instruction, that is the one against which the probative weight of the evidence must be measured.

In Lambert v. Com., Ky., 377 S.W.2d 76, 79 (1964), the term 'wanton' as used in KRS 435.022(1) was thus defined: 'A wanton act is a wrongful act done on purpose in complete disregard of the rights of others. The actor must have conscious knowledge of the probable consequences and a complete disregard for them.' This is the definition required to be given as a part of the instructions. Hemphill v. Commonwealth, Ky., 379 S.W.2d 223, 227 (1964).

The briefs of counsel are focused on the question of whether the evidence was sufficient to identify Fugate as the person whose vehicle struck the decedent. The evidence adduced in the case also was directed almost exclusively to the matter of tying Fugate to the accident, with the result that the information concerning physical details is meager and unsatisfactory. We have no difficulty in concluding that the evidence was enough to identify Fugate as the guilty party. Considering, however, that the gravamen of the offense inheres in the manner in which he was operating his vehicle at the time it struck and killed Campbell, the real question to be decided is whether the evidence in that respect was sufficient to justify a finding that his negligence was of the highest degree short of an intentional killing, 'an act creating such extreme risk of death or great bodily injury as to manifest a wanton indifference to the value of human life according to the standard of conduct of a reasonable man under the circumstances.'

We shall confine our summary of the evidence to the facts and circumstances that are reasonably relevant to that issue.

The road on which Campbell was killed borders along Sixteen Mile Creek, which runs from south to north, so that a person traveling north is referred to as going 'down' the creek and one traveling south is referred to as going 'up' the creek. It has a blacktop surface, but there was no showing of how wide it is. Neither was it shown whether the accident took place on a curve or on the straightaway.

The body was found by Harve Hensley, Judge of the Perry County Court. Judge Hensley had been visiting at Napier's store, which is located on the roadside one-half mile south (up the creek) of the accident scene. As he was preparing to depart, he saw the headlights of a vehicle pass by on the road, going down. He does not know whether it was a car or a truck, nor did he estimate its speed. He left two or three minutes thereafter, proceeded down the road in the same direction at about 30 m.p.h., and came upon the body within three or four minutes after having seen the headlights of the vehicle passing Napier's store. Campbell was lying in the center of the road, dead or dying, and blood was running down the middle of the road from his body. An inspection of the road disclosed 'some spots of blood back up the road from where the body was laying and it looked like he had been drug on the road, whatever there did hit him, looked like it was traveling down the road,' and the distance the body appeared to have been dragged was 'about 15 or 20 feet, close to that.' The witness did not examine the body and did not know whether there were any broken bones.

According to Judge Hensley, Campbell's sister, Marie Combs, 'lived straight across from where I found him, and 100 yards back up that way.' He could see lights in the house, and after he sounded his horn to attract their attention Marie, Astor Campbell (brother of the deceased), Margaret Campbell (Astor's wife), Balis Campbell, Jr., and Marie's children came out to the road.

Willie Smith, who lives one-fourth of a mile above the Marie Combs place, was driving up the road (south) on his way home between 8:00 and 8:30 P.M., and in a sharp curve of the road 1 1/4 miles below (north of) the scene of the accident he met a truck going in the other direction (down) at about 45 to 50 m.p.h., 'a pretty good rate of speed on that road * * *. All the roads (sic) down Sixteen Mile are real sharp and narrow curves.' He identified the vehicle as a 3/4-ton truck with 'two lights up on the cab.' Smith soon arrived at the place where Marie Combs and the others were gathered in the road around the body. He observed that 'up above where he were laying, some 15 or 20 feet, there was blood on the highway, looked like where he had been drug.' The witness was not able to say just where Campbell was when he was struck, but said 'it looked like he was more on the left, I don't know' (referring to the left side coming down).

Marie Combs testified that she lived 'door neighbor' to Bernis Campbell, that the front of her house was about 30 feet (another witness said 60 feet) from the road, and that the place where Bernis was struck was almost in front of her door. At about 5:00 P.M. she had finished supper and was waiting for her brothers Astor and Bernis and two companions, Balis Campbell, Jr., and Marcus Jones, to come in. She saw them pull into her driveway, 'and they had been pulled in about two minutes and I saw a truck going past with the lights turned out * * * and, I guess, something like a minute after that we heard this horn blow * * * and we ran out in the yard' and found Judge Hensley, who told them someone had been killed. Marie then discovered that the victim was her brother, Bernis. She said that he was still warm and was not yet dead.

Marie inspected the highway the next morning. 'I went over and looked at the wide place where he was standing * * *. About three feet on the--out in the wide place on the left of the road, there was blood and hair laying there and there, to where they started dragging him, where he was hit, down to the highway where we found him.' 'About how far was that?' 'I would say 40 feet from where he was killed at the wide place.'

Rodney Maggard, a state trooper, investigated the accident in response to a call received at 8:25 P.M. He found Campbell lying in the middle of the road and deduced that he had been hit by a vehicle going north down the creek which 'struck the pedestrian and drug him 22 feet and six inches on the highway and leaving the scene.' Trooper Maggard at once investigated all along the highway and up the side roads in an unsuccessful search for the offending driver and vehicle, then 'went back and made out my accident report and furthered the investigation * * *. I went back to the scene and found that the victim had been struck from the side of the road rather than the center of the road, about 2 1/2 feet off the main highway, and had been drug down the road by this vehicle, approximately 40 feet.'

The trooper was not asked and did not say what were the physical facts on which he based the foregoing conclusion or to which side of the road he was referring, or exactly what he had in mind as 'the main highway.' (In this connection, it will be recalled that Marie Combs gave her estimate of the point of impact as three feet 'out in the wide place on the left of the road.')

Marcus Jones and Balis Campbell, Jr., two of...