Grissom v. Com.

• Decision Date: 11 June 1971
• Parties: Jack H. GRISSOM, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 263

468 S.W.2d 263

Jack H. GRISSOM, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

June 11, 1971.

Robert T. Schneider, Horse Cave, for appellant.

John B. Breckinridge, Atty. Gen., Curtis L. Wilson, Asst. Atty. Gen., Frankfort, for appellee.

DAVIS, Commissioner.

On October 20, 1969, Sylvia Grissom was found in her bedroom with a fatal pistol wound in her head. Her husband, Jack Grissom, was charged with murdering her. Upon his trial he was found guilty of voluntary manslaughter and sentenced to imprisonment for twenty-one years. On this appeal he contends that (1) the court erred in giving a voluntary manslaughter instruction, since the proof required a finding of willful murder or acquittal; or, in the alternative, the court should have instructed on involuntary manslaughter if it was proper to instruct on voluntary manslaughter; (2) photographs of the victim's body should have been excluded; (3) the court erred in denying a motion for change of venue; and (4) the court improperly refused to 'admonish and discharge a juror for cause.'

In discussing so much of the factual background as is necessary for an understanding and disposition of the questions, the given names of the victim and accused will be used.

Jack and Sylvia were married in 1966, each having been married before. Their married life was market with much strife, which included Jack's beating and cutting Sylvia with a bottle and Sylvia's shooting and wounding Jack with a pistol. Some evidence was presented which tended to show that the couple had serious quarrels about a number of matters, including Jack's alleged involvement with other women. On the day before Sylvia's death, she had driven to a neighbor's home in Jack's car. He considered it necessary to surreptitiously take the car away from her because of her mental and physical condition (which was said to have included intoxication or drug use, or both). From all these circumstances, it was reasonable for the jury to believe that Sylvia and Jack may well have had a heated argument on the fatal day.

Jack and Sylvia were the only two persons in the house when Sylvia received the fatal wound. Jack's version of the matter was that he came into the house, but did not see Sylvia until after she was shot. He offered evidence tending to prove that the time lapse between the time a shot was heard and Jack was seen made it physically impossible for him to have fired the shot which killed Sylvia. If the jury had believed that account, it should had acquitted Jack. However, Jack does not contend that he was entitled to a peremptory instruction of acquittal. Rather, it is his theory that in all the circumstances the jury had to believe that he killed Sylvia with malice aforethought or not at all. It was murder or nothing, says Jack.

It is appropriate to observe that Jack's claim of complete innocence and ignorance of Sylvia's wounding leaves only the theory that Sylvia shot herself. Two physical facts militate strongly against that hypothesis; there was no powder burn on Sylvia's body; no weapon was found. Since Sylvia was shot in the right temple with a .38 caliber bullet which emerged from her left temple, it is at least mysterious how she could have accomplished this herself without leaving powder burns or the weapon.

In support of his view that no instruction on voluntary manslaughter should have been given, Jack cites Shannon v. Commonwealth, Ky., 460 S.W.2d 346; Davenport v. Commonwealth, 285 Ky. 628, 148 S.W.2d 1054; Canada v. Commonwealth, 281 Ky. 641, 136 S.W.2d 1061; and Johnston v. Commonwealth, 170 Ky. 766, 186 S.W. 655.

The Commonwealth contends that the court properly gave the voluntary manslaughter instruction and cites Marcum v. Commonwealth, 305 Ky. 92, 202 S.W.2d 1012; Cottrell v. Commonwealth, 271 Ky. 52, 111 S.W.2d 445; and Fitch v. Commonwealth, 267 Ky. 646, 103 S.W.2d 98. All of the cases just mentioned recognize that the instructions in a criminal case should contain the whole law of the case. Those decisions, and many others which could be cited, recognize that the propriety of giving any particular instruction in a criminal case rests upon the determination that something in the contentions or circumstances reflects a legal basis for the particular instruction.

In Canada v. Commonwealth, 281 Ky. 641, 136 S.W.2d 1061, the court instructed on murder only. The defendant contended that he was entitled to an instruction on voluntary manslaughter. This court rejected that contention because it found that there was nothing in the record that could form the predicate of an inference that the victim had been killed in sudden heat or passion or in sudden affray. In support of that conclusion the court noted that all of the circumstances and conditions indicated that the victim had been assassinated in the nighttime by shots through a window as he lay on his bed. The court said in part: 'There was no sign of any struggle or fight or resistence, or any other condition upon which the jury could have based an inference of mitigation of the crime of murder.' Id. 136 S.W.2d 1063. In the present case there was abundant testimony, including that heard from the lips of the appellant himself, that almost continuous strife and argument prevailed between Sylvia and Jack. While there was no direct evidence of struggle in the sense that a disarray of furniture or other objects could be seen, the constant bickering and physical encounters which had occurred between the victim and the accused afford basis for an inference that a homicide occurred in circumstances short of willful murder.

In Davenport v. Commonwealth, 285 Ky. 628, 148 S.W.2d 1054, the court instructed only on murder and reasonable doubt, omitting instructions on manslaughter and self-defense. There it was argued that since there was no eyewitness to the killing and as there was evidence of a struggle, the court should have instructed on every degree of the crime which might possibly apply so that the jury might return a verdict consistent with any state of facts which it might believe existed from the evidence. The court rejected the argument in that case, pointing out that the defendant's own testimony foreclosed his right to insist on the instructions covering manslaughter and self-defense. It was stated in Davenport, in analyzing Frasure v. Commonwealth, 169 Ky. 620, 185 S.W. 146:

'* * * where the evidence is entirely circumstantial and only establishes the corpus delicti, and other circumstances from which defendant's connection with the crime might be inferred, the court should instruct on all phases of homicide; but where defendant testifies to facts showing how the killing occurred and where there is no room for any possible theory except he is guilty of murder or he is innocent, there is no reason for the court to give the...