Hemphill v. Com.

• Decision Date: 12 December 1969
• Citation: 448 S.W.2d 60
• Parties: Parker HEMPHILL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 60

448 S.W.2d 60

Parker HEMPHILL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Dec. 12, 1969.

Parker Hemphill, pro se.

John B. Breckinridge, Atty. Gen., Howard E. Trent, Jr., Asst. Atty. Gen., Frankfort, for appellee.

MILLIKEN, Judge.

This is an appeal from an order of the Knox Circuit Court denying appellant's 11.42 motion to vacate his judgment of conviction of voluntary manslaughter. Appellant alleges as grounds for his appeal in this RCr 11.42 proceeding that he should not have been tried the second time on an indictment charging murder, since the conviction for voluntary manslaughter in his earlier trial for murder and voluntary manslaughter ¹ resulted in an acquittal of the murder charge. He maintains that the earlier conviction of voluntary manslaughter operated as an acquittal on the charge of murder so that a second trial for murder constituted double jeopardy. In his RCr 11.42 motion, he also alleges that trial again on the charge of murder gave the prosecution 'the advantage of offering the jury a choice (murder or voluntary manslaughter), a situation which is apt to induce a doubtful jury to find the appellant guilty of the less serious offense rather than to continue the debate as to his innocence'. His conviction on his second trial was affirmed, the only issues raised on the appeal being in regard to the empaneling of the jury, Hemphill v. Commonwealth, Ky., 405 S.W.2d 956 (1966).

Was it error to try appellant again on an indictment charging murder where on a previous trial he had been charged with murder but was convicted of voluntary manslaughter?

In support of his motion appellant cites one Kentucky case, one Supreme Court case, and several sister state court cases. The Kentucky case, Vinson v. Commonwealth, Ky., 412 S.W.2d 565 (1967), is not a case in point. In that case, because of a statutory change in the penalty for involuntary manslaughter we held that an instruction on involuntary manslaughter was improperly given, the court reasoning that the offense of involuntary manslaughter should no longer be used as an appendage to charges of murder and voluntary manslaughter where intent is involved.

In the Supreme Court case which appellant cites, Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), the court held that where the Federal Court jury was authorized at the first trial to find the defendant guilty of either first degree murder or second degree murder, and he was found guilty of second degree murder, but the case was reversed on appeal and remanded for a new trial, a second trial of defendant for first degree murder violated the constitutional prohibition against double jeopardy. In Blanton v. Commonwealth, Ky., 320 S.W.2d 626 (1959), the Kentucky case relied on by the Commonwealth, the rule of Green was held not to apply to a prosecution by the state of Kentucky since the double jeopardy provision of the Fifth Amendment was then construed as a restriction of federal power only. However, since Blanton, the Supreme Court has decided Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (June 23, 1969) which extends the double jeopardy prohibition of the Fifth Amendment to the states through the Fourteenth Amendment on the ground that it is 'fundamental to the American scheme of justice' (89 S.Ct. at 2063). Therefore, we are compelled to overrule Blanton, in which the issues were similar to those in the case at bar, on the strength of the Supreme Court cases of Green v. United States and Benton v. Maryland.

At first glance, a second trial on a murder indictment would not appear to have harmed the appellant, since in both trials he was convicted of the lesser offense of voluntary manslaughter and given an identical sentence, twenty-one years. This was unlike Green in which the defendant received a conviction on a more serious charge at the second trial. His argument is that the inclusion of the offense of murder in the indictment was harmful, because it 'gave the prosecution the advantage of offering the jury a choice, a situation which is apt to induce a doubtful jury to find the appellant guilty of the less serious offense rather than to continue the debate as to his innocence'.

The issues in the case at bar are similar to those considered by a Federal court in United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844 (2nd Cir. 1965), in which the accused was indicted on a charge of murder in the first degree, and was tried three times on the same indictment. The first trial resulted in a conviction of second degree murder, which was reversed; the second trial, conviction of first degree murder, also reversed; and the third trial, a conviction of second degree murder, which was the conviction under consideration on the appeal. In Wilkins a plea of double jeopardy was interposed at both the second and third trials. Like the accused in Wilkins...