Hardin v. Com.
| Decision Date | 31 October 1978 |
| Parties | Eugene HARDIN, Movant, v. COMMONWEALTH of Kentucky, Respondent. |
| Court | United States State Supreme Court — District of Kentucky |
Frank E. Haddad, Jr., Louisville, Travis Combs, Jr., LaGrange, for movant.
Robert F. Stephens, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for respondent.
The movant was indicted by the Oldham County Grand Jury for wanton endangerment in the first degree (KRS 508.060) and for being a persistent felony offender (KRS 532.080). He was found guilty on the wanton endangerment charge and his penalty was fixed by the jury at three years' imprisonment. In a bifurcated trial, the same jury which had found the movant guilty of wanton endangerment, after hearing the evidence, found him guilty of being a persistent felony offender and fixed his punishment at 15 years in prison. Thereupon, the trial court sentenced the movant to serve 15 years in the penitentiary. The Court of Appeals of Kentucky affirmed the conviction. This
court granted discretionary review on two issues only. I. Is
KRS 508.060 defining wanton endangerment in the
first degree impermissibly vague so as
to be unconstitutional?
Counsel for the movant argues, (1) the statute is not expressed in a manner so that persons charged by the statute can understand the legislative will; (2) persons charged thereunder do not have fair notice of what activity the statute prohibits by its standards; and (3) the statute lacks clear statutory guidelines to prevent arbitrary enforcement.
KRS 508.060 provides as follows:
The standards by which this court is guided in answering this first issue are set out in Sasaki v. Commonwealth, Ky., 485 S.W.2d 897 (1972), and are as follows:
" "
We need to put the commission of the offense of wanton endangerment in its proper setting. The victim, Ricky Ryans, 17 years of age, described the encounter as follows:
"Q. Tell the jury what happened.
A. Well, I come in and me and Gary Smith and Geno Ritter was sitting on the windowsill there in front of the station. There is some bricks there and we were sitting on the windowsill. These two guys drove up in a white pick-up truck. I guess they asked for gas. I don't know, I couldn't hear, but as soon as they pulled up, Geno walked out there and started putting the gas in the truck. Well, this guy, the gas had already been running in the truck for maybe 20 seconds, I guess, and this guy said put some fucking gas in the truck.
Q. The passenger or the driver?
A. The passenger.
Q. Do you see him here in the Courtroom?
A. Yes, sir.
Q. Would you point him out?
A. Right there (pointing).
Q. You have indicated Mr. Hardin?
A. Yes, sir.
Q. What happened then?
A. Well, he said put some fucking gas in the truck and Geno said the gas is already going in the truck. But Geno seen that the guy, you know, there was something wrong with the guy or something, so Geno walked back up there to pump and stood by the pump. Then the guy said, 'Wash this fucking windshield.' And Geno started washing the windshield. Then he asked I think he started with Gary Smith first. He asked Gary Smith his name and I think Gary Smith said Gary. Then he asked Geno what was his name. He said Geno. He said, 'Sweetheart,' which he was talking to me and I was standing in front of the door at the building. He said, 'What's your name?'
Q. How far were you away from him?
A. What, from the truck and him?
Q. Mr. Hardin. Was he still in the truck?
A. He had stepped out of the truck. Just outside the door.
Q. How far away was he?
A. From me?
Q. Yes.
A. I would say 20 foot.
Q. Then what happened?
A. Then he said, 'Sweetheart, what's your name?' And I said Ricky. I didn't say it real loud or nothing, but that is just what I said. Then he said, 'Sweetheart, I said what's your name?' I didn't answer him. He said, 'I said, Sweetheart, what's your name?' I still didn't answer him. I had done answered him once. Then he said, 'I'll fix that little bastard' and he reached up on the dash. I didn't see what he got right then, but as soon as he walked around by the truck, Gary Smith said he has got a gun. I looked and I seen he did have a gun.
Q. Did he have it in his hand?
A. Yes. He had it in his hand, no holster or nothing. It was just right in his hand.
Q. Who are you talking about?
A. Eugene Hardin.
Q. Then what happened?
A. Then, he walked up there and Gary Smith was standing right directly in front of me, just the way he was standing, and he pushed Gary Smith out of the way and when he did, he come around and slapped me. Then he called me a little son of a bitch. Then, right then, he said, 'I think I'll just blow your little ass off.'
Q. Did he have the gun with him?
A. Then, when he did, he grabbed the gun with two hands like this (indicating). Then this guy that was riding with him, the driver I don't see him.
Q. Describe the gun that he had.
A. It was nickel plated. It was a Smith.
Q. Short barrel, long barrel?
A. It was short barrel.
Q. Silver or blue?
A. It was nickel.
Q. Is that white or blue?
A. Sir?
Q. What color was it, white or blue, Ricky?
A. It was white.
Q. Show you a gun that has been previously introduced into evidence. Look at that gun.
A. Yes, sir.
(Reporter's note: Mr. Ryans examines the gun.)
Q. Would the gun he had look anything like that?
A. Yes, sir. It looks identical to it.
Q. You are telling the jury that this looks exactly like the gun he had?
A. Yes, sir.
Q. Where did he have that gun? How close was it to you?
A. One time it wasn't but about 18 inches from my head.
Q. What did he do after he pointed the gun toward you?
A. He said, 'I think I'll blow your little ass off' and when he did, his partner who was driving he hadn't never got out of the truck as I had seen until then and I guess when his partner seen that he was really going to shoot me, he come out of the truck and he said, A boy or a kid one. He said one of the two. And when he did, that guy started turning away and walked from me, but when he did, he doubled his fist and he hit me right here (indicating). That's when he busted my lip and chin.
Q. Who hit you?
A. Eugene Hardin.
Q. Where was the gun when he hit you?
A. In his hand.
Q. Did he hit you with the gun or his other hand?
A. Just his other hand.
Q. How many times did he hit you?
A. Twice as I can recall of.
Q. Did he do anything besides hit you twice?
A. No, sir. Besides calling me some vulgar names and threatened to kill me.
Q. When this other man got out of the truck, what did he do?
A. He grabbed hold of the guy's arm.
Q. Grabbed hold of whose arm?
A. Eugene Hardin's.
Q. Then what did they do?
A. Well, when he grabbed Eugene Hardin, he started to walk away, but as he did, he hit me that time as I told you.
Q. After he hit you, what did he do?
A. Well, he turned around and walked off and I was kind of dizzy then, but I did get in my car and leave. And then when I turned around, I was walking over to my car to get in, I seen him swing at Geno Ritter.
Q. Saw who swing at him?
A. Eugene Hardin. He had walked back over to the truck then. As soon as he got, I don't know, seven feet from me, I started back towards my car, which my car was setting right beside me, beside the building.
Q. Why did you get your car?
A. Because I was scared for my life.
Q. Where did you go?
A. You see, I had just come to work and as I did, I seen the Chief of Police of LaGrange, I seen his car setting there at the Belle of LaGrange and I figured there was a chance it might be there which it was.
Q. Tell the jury, where did you go when you left the station?
A. I went right directly to the Belle of LaGrange, which is less than a mile.
Q. Why did you leave the station?
A. Because I was getting the police.
Q. Was Mr. Hardin there when you left?
A. Yes, sir.
Q. What was the last thing you saw Mr. Hardin do before you left?
A. Swing at Geno Ritter."
All that is required of a statute is fairness. It is not necessary for the statute to be so specific as to delineate the facts of any one condition under which the act of wanton endangerment may be performed, but a general statement is sufficient. The use of words is an art possessed by too few of us. This makes for an obligation on those who possess this art to write so that the rest of us can understand what has been written. Consequently, we must take a "man on the street" approach to normal activities. Has the statute defined what can or cannot be done with such clarity that persons upon whom it is designed to operate can understand it? We think that it does. Does the statute provide fair warning. We think it does. So as to avoid arbitrary treatment, does it provide explicit standards for those persons who apply it the judge, the jury, the prosecuting attorney, and the arresting officers? We think that it does. Does it prohibit the exercise of any constitutional freedom? We think it does not. We...
To continue reading
Request your trial
-
People v. Ward, No. E008949
... ... (Accord, People v. Johnson, supra, 95 Cal.App.3d at pp. 357-358, 157 Cal.Rptr. 150; Hardin v. Commonwealth (Ky.1978) 573 S.W.2d 657, 661 ["We have held, and it is universally recognized, that a person who ... Page 874 ... is a ... ...
-
Parke v. Raley
...initial trial, fixes a penalty which is to be imposed rather than the one fixed by the jury on the initial trial." Hardin v. Commonwealth, 573 S.W.2d 657, 661 (Ky.1978). See also Malicoat v. Commonwealth, 637 S.W.2d 640, 641 (Ky.1982). Under Kentucky law, the Commonwealth has the burden of ......
-
Wilfong v. Com.
... ... that analysis of constitutional vagueness includes inquiry as to "whether a person disposed to obey the law could determine with reasonable certainty from the language used whether contemplated conduct would amount to a violation") overruled on other grounds by Martin, 96 S.W.3d at 38; Hardin v. Commonwealth, Ky., 573 S.W.2d 657, 660 (1978)(applying a "man on the street approach"); and Sasaki v. Commonwealth, Ky., 485 S.W.2d 897, 901 (1972)(stating that "`[t]he accepted test in determining the required precision of statutory language imposing criminal liability is whether the ... ...
-
State v. Beloit
... ... and apart from the initial trial, fixes a penalty which is to be imposed rather than the one fixed by the jury on the initial trial." Hardin v. Commonwealth, 573 S.W.2d 657, 661 (Ky.1978) ... I believe that had Kentucky chosen to make being a persistent-felony offender a separate crime ... ...