Hall v. Com.

• Decision Date: 11 March 1955
• Citation: 276 S.W.2d 441
• Parties: Elvis HALL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 441

276 S.W.2d 441

Elvis HALL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

March 11, 1955.

Woodward, Bartlett & Catinna, Hartford, for appellant.

J. D. Buckman, Jr., Atty. Gen., Zeb A. Stewart, Asst. Atty. Gen., for appellee.

CAMMACK, Justice.

Elvis Hall, 41 years of age, was convicted of maliciously cutting and wounding Frederick McQuady, with intent to kill. He was sentenced to prison for two years. On his appeal Hall contends that the lower court erred (1) in giving an instruction on malicious cutting and wounding; (2) in not giving an instruction on assault and battery; (3) in failing to define the terms 'deadly weapon' and 'sudden affray' as they were used in the instructions; and (4) in permitting a knife to be exhibited in evidence during the trial.

The principal witness for the Commonwealth, Frederick McQuady, 20 years old, testified that on August 15, 1953, he, accompanied by Ernest Embry and Wendell Morris, was driving out of Hartford toward Beaver Dam. He turned his left signal light on and started to turn left off the highway for the purpose of turning around, when a car driven by Hall started to pass him. McQuady said he turned back into his right lane; drove on a short distance farther and turned left off the road near a bulk gasoline plant; and Hall drove in behind him. According to McQuady, Hall got out of his car, walked up to where he was and said, 'If you can't drive the damn thing, park it.' He then got out of his car and a fight ensued between him and Hall. The evidence is conflicting as to who struck the first blow. McQuady testified that Hall hit him with his fist; he struck Hall with his fist; Hall immediately pulled a knife from his pocket and cut him over the right eye; and he ran a few steps, picked up a coca-cola bottle and threw it at Hall. The Commonwealth's evidence is to the effect that the bottle missed Hall and broke on an oil drum, while Hall's evidence showed that the bottle struck him on the head and then broke. McQuady ran across the street; picked up a piece of pipe about three feet long; ran back to the scene of the fight; and struck Hall a blow which rendered him unconscious. McQuady said Hall was coming toward him with his knife when he struck him with the pipe. The boys who were in the car with McQuady corroborated this testimony. Both of them said they saw a knife on the ground near Hall after the fight was over. They said it was a small pocket knife; one of them saying the blade was about one and one-half or two inches long.

Hall's version of the incident is at variance with that of McQuady. He testified that he and his wife and another couple were returning from Owensboro; as they drove into Hartford, McQuady's car was parked in the middle of the street and McQuady was engaged in a conversation with someone; Hall blew his horn and then McQuady started driving very slowly and stopped at a traffic light; the light changed and McQuady did not pull out immediately, so Hall blew his horn and started around him but was prevented from doing so by oncoming traffic; McQuady started moving very slowly again; he attempted to pass him a second time but McQuady pulled over in front of him; McQuady gave no signal of his intention to turn left at any time; he started to pass McQuady again and when the front of his car was about even with the rear door, McQuady swerved his car to the left again, leaving the road; and in order to avoid a collision he turned sharply to the left, and drove off the road to the rear of McQuady. Hall said he stopped a few feet behind McQuady; got out of his car and said, 'Son, what are you trying to do? Don't you know how to make a left-hand turn?'; McQuady answered by saying, 'I'll show you'; McQuady got out of his car and came toward him and they began fighting; McQuady struck him before he hit McQuady; no one was hurt during this first struggle; McQuady broke away, picked up a coca-cola bottle and hit him withi it; and McQuady ran across the street into a yard. He said he thought the difficulty was over so he started to get back into his car, but before he was able to do so McQuady ran up and hit him with a pipe. Hall denied using a knife and stated he did not have a knife with him at the time. He also testified that the knife exhibited in evidence was not his. Hall's wife and the other passengers in his car corroborated his testimony. Archie Renfrow, who was in a restaurant near the scene of the fight, testified that the fight was over before he reached the immediate scene. However, he saw a small knife on the ground about 15 feet from where the fight took place. He picked it up but a deputy sheriff took it from him.

It is argued by Hall that the crime charged...