Housman v. Commonwealth

• Decision Date: 07 May 1908
• Citation: 128 Ky. 818,110 S.W. 236
• Parties: HOUSMAN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

110 S.W. 236

128 Ky. 818

HOUSMAN v. COMMONWEALTH.

Court of Appeals of Kentucky.

May 7, 1908

Appeal from Circuit Court, Graves County.

"To be officially reported."

Moorman & Warren and B. C. Seay, for appellant.

James Breathitt, Atty. Gen., Theo. B. Blakey, Thos. B. McGregor Chas. H. Morris, W. H. Hester, for the Commonwealth.

HOBSON J.

Appellant was indicted for the willful murder of Flem Poplin. On a plea of ""not guilty" he was tried, convicted, and his punishment fixed at imprisonment for five years in the penitentiary. To reverse that judgment this appeal is prosecuted.

He complains that the trial court did not properly instruct the jury, and that the prosecuting attorney in his closing argument was guilty of such misconduct as warrants a reversal. His chief objection to the instructions is that the court instructed the jury under sections 1166 and 1242 of the Kentucky Statutes of 1903, in addition to the usual instructions given on a trial where the charge in the indictment is murder. The deceased lived for some time after the difficulty, and much evidence was introduced on the trial tending to show that his death was due to a lack of treatment or improper treatment, rather than to the wound with the knife which had been inflicted by appellant. To meet this phase of the case the trial judge instructed the jury that if they believed appellant willfully, feloniously, and not in his necessary self-defense cut and wounded Flem Poplin with a knife, a deadly weapon, with intent to kill him, but from which cutting and wounding he did not die, then they should find him guilty of malicious cutting and wounding, and fix his punishment at not less than one year nor more than five years imprisonment in the penitentiary (as authorized by section 1166, Kentucky Statutes of 1903). The court also instructed the jury that, if they believed the cutting was done in sudden heat and passion and without malice, and that death did not result therefrom, then they should find the accused guilty and fix his punishment as defined by section 1242 of the Kentucky Statutes of 1903, at a fine of not less than $50 nor more than $500, or confinement in the county jail for not less than 6 months nor more than 12 months, or both, in the discretion of the jury. The jury in their verdict stated that they found the accused guilty of malicious cutting. By section 262 of the Criminal Code upon an indictment for an offense the defendant "may be found guilty of any offense included in that charged in the indictment." By section 263 an offense and the attempt to commit the offense, if the attempt be punishable, may be punished under an indictment for the offense; and by section 264, if an offense be charged to have been committed with particular circumstances, the offense without the circumstances or with part only is included in the offense although that charged may be a felony, and the offense without the circumstances a misdemeanor only.

The precise question arising in this case was decided by this court in Bush v. Commonwealth, 78 Ky. 268. In that case as here there was proof tending to show that the death of the deceased was due to another cause. The circuit court refused to instruct the jury as to malicious wounding. For this cause the judgment was reversed. The court by Judge Hines said: "If a new and wholly independent instrumentality interposed and produced death, it cannot be said that the wound was the natural or proximate cause of the death. 14 Grat. (Va.) 601, Livingston v. Commonwealth. This view of the law was not so presented to the jury as to give the appellant its full benefit. It should have been clearly and definitely presented to the jury that, if they believed from the evidence that death would not have resulted from the wound but for the intervention of the disease, they should not find the accused guilty of murder or manslaughter, but that they should find him guilty of willful and malicious shooting and wounding under chapter 29, art. 6, § 2, Gen. St. 1888, or of shooting and wounding in sudden affray, or in sudden heat and passion, without malice, under chapter 29, art. 17, § 1, Gen. St. 1888. Section 262 of the Criminal Code reads: 'Upon an indictment for an offense consisting of different degrees, the defendant may be found guilty of any degree not higher than that charged in the indictment, and may be found guilty of any offense included in that charged in the indictment.' While the offenses denounced in chapter 29, art. 6, § 2, Gen. St. 1888, and in section 1, art. 17, of the same chapter, are not degrees of the offense charged in the indictment, they are, in the language of the section quoted from the Code, 'included' in the offense charged." See, also, to same effect, Payne v. Commonwealth, 46 S.W. 704, 20 Ky. Law Rep. 475.

In the case at bar the circuit court followed the rule laid down in these cases. Bush v. Commonwealth was approved in an opinion by Judge Lewis in Fenston v. Commonwealth, 82 Ky. 549, and in Barnard v. Commonwealth, 94 Ky. 285, 22 S.W. 219 where the court by Judge Bennett said: "Here the crime of assaulting with intent to rob cannot be made out without establishing an assault or assault and battery with such intent; and, if the assault is committed without the additional circumstances of an intention to rob, then the assault is but a mere misdemeanor. But the intent to rob and a conviction for it absorbs the misdemeanor into the higher crime of felony; so likewise the higher crime of murder absorbs the offense of the mere assault and battery. But, if the murder be not established, the party may be punished for the assault and battery; and if the person was not convicted of the assault with intent to rob, but committed a common assault and battery, he may be found guilty of a misdemeanor, because it is but a degree of the crime of assault with intent to rob."

These principles were followed in Fagan v. Commonwealth, 38 S.W. 431, 18 Ky. Law Rep. 714, Parrott v. Commonwealth, 47 S.W. 452, 20 Ky. Law Rep. 761, and Commonwealth v. Yarnell, 68 S.W. 136, 24 Ky. Law Rep. 144. The rule thus laid down by this court is approved by the text-writers. In 1 Bishop's New Criminal Law, § 780, the rule is thus stated: "In felonious homicide, committed by an assault and a beating, there may be a gradation of offenses, the particulars of which will somewhat vary with the laws of the state in which it is committed. The lowest offense will be assault, the next above it will be battery, the next will sometimes be assault with a dangerous weapon with intent to kill, the next manslaughter, the next murder, and the last murder in the first degree. Each one of these, except the last, will be a less crime included in the greater. And, where the common-law rule that there can be no conviction for misdemeanor on an indictment for felony does not prevail, a person on trial for any higher one of these offenses may be convicted of any lower one which the proofs establish, if the indictment is, as it always may be made, in a form to include the lower."

The statement of the text is fully borne out by the adjudicated cases where the statutes are similar to those in force...