Gibson v. Commonwealth

• Decision Date: 10 October 1924
• Parties: GIBSON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

265 S.W. 339

204 Ky. 748

GIBSON v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 10, 1924

Appeal from Circuit Court, Fayette County.

Alex Gibson was convicted of burglary, and appeals. Affirmed.

Owen S Lee and Neil G. Sullivan, both of Lexington, for appellant.

Frank E. Daugherty, Atty. Gen., and Gardner K. Byers, Asst. Atty Gen., for the Commonwealth.

DRURY C.

Appellant was convicted of burglary and his punishment fixed at death. Some time in the early part of the night of December 11 1923, the appellant entered the home of R. W. Thompson, about 5 miles from Lexington, in Fayette county. Lucian Thompson, a son of R. W. Thompson, had gone to Lexington, and when he returned, between 10 and 11 o'clock that evening accompanied by a friend, Granville Manious, they entered the house through the kitchen. He became suspicious when he found the door of the kitchen open, and presently they heard the appellant in the dining room. Young Thompson, having obtained a match from Manious, struck it and entered the dining room, and as he did so he saw the appellant fleeing from the dining room into the hall which adjoined it.

The appellant had on his shoulder a 20-gauge Winchester repeating shotgun belonging to young Thompson, and, as Thompson endeavored to seize the appellant, he threw it down on Thompson, and pulled the trigger. Fortunately for Thompson, the gun was not loaded and only snapped. Thompson succeeded in taking the gun away from the appellant and struck him with it several times. In the struggle the parties had passed from the house out into the yard, and after that the gun was, in the struggle, knocked out of Thompson's hand, whereupon both appellant and Thompson drew their knives, and began to cut and stab each other. Appellant fared better than Thompson in this cutting and stabbing, and soon had Thompson hors de combat from wounds inflicted upon him; the severity of which may be fairly well determined by the fact that young Thompson was in a hospital for about seven weeks as a result thereof.

Appellant admits entering the house, but alleges that at the time he did so he was in a state of intoxication; that he had drunk 6 ounces of Jamaica ginger and a pint of whisky; that he was feeling bad, and entered the house to see if he could get something to eat. He contends that he never snapped the shotgun at young Thompson, but that he picked up the gun off of a table and undertook to defend himself with it when young Thompson attacked him. He says he did not go in there to steal anything, except a little something to eat, and that he had filled his pockets full of bread and meat when his presence was discovered. He insists that the repeating shotgun was lying on a table, whereas young Thompson says this gun was kept in the pantry, and the pantry closed. His account of the struggle with Thompson does not differ materially from Thompson's account of it. The appellant, however, insists that he was acting on the defensive all the time, and that he believed young Thompson was trying to kill him, and that his efforts with the gun and his use of his knife upon young Thompson were all for the purpose of extricating himself from the difficulty he was in, and avoiding serious injury at the hands of young Thompson.

The commonwealth proved, and the appellant admitted, that he had been convicted of burglary on January 17, 1907, in the Fayette circuit court, and his punishment fixed at confinement in the penitentiary for 5 years. He also admitted that on January 18, 1907, he was convicted of burglary in the Fayette circuit court, and his punishment fixed at confinement in the penitentiary for 10 years; the punishment under the last verdict to begin after the expiration of the punishment under the first. Appellant also admitted that he was sent to the penitentiary for 10 years by the Madison circuit court in March, 1891, for breaking into a store house.

Appellant admits entering this house by way of the kitchen door, but, when asked if this door was fastened, made this answer:

"No, sir; about that wide open (indicating). There was a piece of carpet or something laying on the floor; a piece of carpet or something holding it open; I don't know what it was."

Mr. R. W. Thompson, when asked about the condition of this door, said that before he retired, which was about an hour before the appellant made his entry, he closed this door, but did not lock it. He merely pulled it to and latched it.

The value of the shotgun that appellant had when young Thompson saw him was shown to be $25 or more.

Appellant complains of the instructions given by the court. He was convicted under section 1159 of the Kentucky Statutes, as amended by chapter 97 of the Acts of 1922, which amendment was approved and became effective March 24, 1922. It is insisted for him that this act is unconstitutional, for the reasons which we shall discuss. First, the title is attacked, which is as follows:

"An act to amend section 1159, Kentucky Statutes, Carroll's 1915 Edition, relating to burglary and robbery."

By an act approved February 29, 1904, the General Assembly for that year, by chapter 4 of its acts, adopted the 1903 edition of Carroll's Statutes as the law of Kentucky, and provided that any of the sections therein might be amended or repealed by the General Assembly by a reference to such sections, without giving the date or title of the act from which the section is taken, and similar acts have been passed since, adopting later editions. See chapter 104, page 275, Acts 1922. Thus the title of this act clearly indicated what the Legislature was undertaking to do, and the effect of what the Legislature did was to so amend section 1159 that, as regards burglary, it is now the law of Kentucky that:

"Every person guilty of burglary shall be punished with death, or confinement in the penitentiary for life, in the discretion of the jury."

The remainder of section 1159 was repealed. It seems unfortunate that chapter 97 of the Acts of the General Assembly for 1922 was not more carefully drawn, but the provisions of section 51 of the Constitution are mandatory, and the result is that the remainder of what had been section 1159 was repealed. In this connection, we deem it well to quote this, which this court has said of section 51 of our Constitution:

"The section now under consideration, however, is so short and readily understood that it would seem not difficult to so construe it as to render it an easy matter for the Legislature to observe its provisions. But, notwithstanding this, the number of legislative acts in which its provisions have been disregarded is surprising. Time and again this court has found it necessary to declare legislative acts invalid on account of fatal defects arising under this section, and time and again it has, with painstaking care, endeavored to point out the necessity for a substantial observance of its requirements, and fully explained, if indeed explanation was necessary, how they might be complied with." Board of Penitentiary Commissioners v. Spencer, 159 Ky. 255, 166 S.W. 1017.

In Board of Penitentiary Commissioners v. Spencer, this court set forth in great detail the effect of its various decisions, construing section 51 of the Constitution, and, among other things, said:

"That when it is proposed to revise or amend one or more sections of the Kentucky Statutes, or an act, the body of the new act should contain the section or sections as they will read when revised or amended, if it is proposed to re-enact or leave in force any part of the section or sections that are amended or revised. If, however, it is intended to repeal one or more sections, then it is not necessary to set forth in the body of the act the section or sections repealed."

Appellant insists that the law under which he was convicted and his punishment fixed is unconstitutional, because it violates article 8 of the federal Constitution, but it has repeatedly been decided that the prohibition in the Eighth Amendment to the federal Constitution applies only to the United States government and the courts of that government. O'Neil v. Vermont, 144 U.S. 323, 12 S.Ct. 693, 36 L.Ed. 450. In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519; Pervear v. Com., 5 Wall. (72 U. S.) 475, 18 L.Ed. 608; McDonald v. Com., 173 Mass. 322, 53 N.E. 874, 73 Am.St.Rep. 293; State v. Blake, 157 N.C. 608, 72 S.E. 1080.

Appellant contends that the law is unconstitutional because it violates section 17 of the Constitution of the state of Kentucky, which is as follows:

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel punishment inflicted."

Thus this case presents the question: Is the death penalty a cruel punishment for the crime of burglary? It may be assumed that the death penalty, in a proper case, is not cruel, within the prohibition of the Constitution. A similar question was decided in a similar way in Re Kemmler, supra. It is a matter of common knowledge that the death penalty is not unusual, as it is employed in nearly all the states of this union, as well as by the United States government itself, and by the governments of nearly all the civilized world, as a punishment for crime. Counsel for appellant contends however, that it is a cruel punishment for the offense of burglary, and, if it is, then it is unconstitutional. Much difficulty has been experienced by both courts and text-writers in attempting to define the scope of this and similar constitutional provisions. Some courts have thought that it was never intended as a limitation upon legislative discretion in determining the severity of punishment to be inflicted, but rather refers to the mode of its infliction. Thus, in Aldridge v. Com., 2 Va. Cas. 447,...