Johnson v. Commonwealth

• Decision Date: 14 May 1937
• Citation: 105 S.W.2d 641,268 Ky. 555
• Parties: JOHNSON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

105 S.W.2d 641

268 Ky. 555

JOHNSON v. COMMONWEALTH.

Court of Appeals of Kentucky

May 14, 1937

Appeal from Circuit Court, Floyd County.

Gus Johnson was convicted of manslaughter, and he appeals.

Reversed.

Bond &amp Bond, of Prestonsburg, for appellant.

B. M Vincent, Atty. Gen., and J. M. Campbell, Asst. Atty. Gen for the Commonwealth.

DRURY Commissioner.

Between 8:30 and 9 p. m. Monday, July 27, 1936, Gus Johnson, a deputy constable, in the city of Martin, Floyd county, Ky. shot and killed Alton Patton, a young man, whom Johnson did not even know.

By indictment returned forty-two days later, Johnson was charged with willful murder and when tried nineteen days after the return of the indictment, before a jury brought from Pike county, he was convicted of manslaughter and his punishment fixed at confinement in the penitentiary for five years.

Change of Venue.

Defendant, after timely notice, filed an eight-page and personally verified petition for a change of venue to some other county and in support of it filed the affidavits of eight citizens of Floyd county, not akin to or of counsel for defendant, setting forth their acquaintance with public opinion and giving reasons because of which defendant would not be able to secure a fair trial in Floyd county. The commonwealth denied this categorically, but it filed no affidavits in support of its denial.

Under section 11 of Const. and section 1109 et seq., Ky.St., defendant had a right to change of venue upon this petition and supporting affidavits, and the court erred in denying it, since the commonwealth offered no evidence to the contrary. Holmes v. Com., 218 Ky. 314, 291 S.W. 383; Hunter v. Com., 208 Ky. 466, 271 S.W. 559; Wilkerson v. Com., 88 Ky. 29, 9 S.W. 836, 837, 10 Ky.Law Rep. 656; Miller v. Com., 248 Ky. 717, 59 S.W.2d 969; Hall v. Com., 253 Ky. 148, 69 S.W.(2d) 3. This error was not cured by summoning a jury from Pike county. See Miller Case, supra.

There was great confusion in the evidence, some of the witnesses testified three shots were fired, some witnesses testified they heard four. There is similar conflict regarding what was said and done. There was like conflict regarding light and ability to see. One witness claimed the moon (then nine days old) made things light as day, yet scientists who have the use of our greatest observatories tell us the light we receive from the sun is 436,000 times that which we receive from the moon when it is at its full and its brightest.

The questions on this appeal are such that we only have to consider on this appeal defendant's evidence to learn if he got the instructions to which he was entitled. Johnson, whom we shall refer to as defendant, filed seventeen grounds in support of his motion for a new trial. His motion was overruled, and he has appealed.

The commonwealth's theory of this homicide was that it was a deliberate murder and that theory was set forth in the indictment and instruction No. 1 which is as follows: "If the jury believe from the evidence in this case beyond a reasonable doubt that the defendant, Gus Johnson, in Floyd County, Kentucky, and before the finding of the indictment herein, willfully and not in his necessary or to him apparently necessary self-defense shot Alton Patton, with a pistol, a deadly weapon loaded with powder and leaden balls, or other hard and explosive substances, and that the said Alton Patton died thereby, you will find the defendant guilty,--guilty of willful murder if the shooting was done with malice aforethought,--guilty of voluntary manslaughter if the shooting was done without malice aforethought, but in sudden affray or in sudden heat of passion and upon provocation ordinarily calculated to excite passion beyond control. If you find the defendant guilty of willful murder you will fix his punishment at death or confinement in the State Reformatory for life in your discretion. If you find him guilty of wilful murder you will fix his punishment at confinement in the State Reformatory for a period of not less than two (2) nor more than twenty-one (21) years in your discretion."

The words "wilful murder" which we have italicized in this instruction should have been voluntary manslaughter, and should be so changed before it is used again.

In attempting to instruct upon the defendant's theory of the case, the court gave this instruction: "The court further instructs the jury that the defendant, Gus Johnson, was a peace officer of Floyd county at the time he shot and killed Alton Patton, and as such he had the right and it was his duty to preserve the public peace, and to prevent any and all breaches of the public peace committed or about to be committed in his presence, and to arrest if need be in order to preserve the peace. If you believe from the evidence that the deceased, Alton Patton, was publicly drunk and guilty of such boisterous conduct as was calculated to disturb the public peace in defendant's presence, then it was the duty of the defendant to use such means as might be necessary to prevent a continuance of such conduct. He had the right and it was his duty to go to the said Patton and to use such force as was reasonably necessary to prevent the continuation of such conduct; and if the said Patton refused to obey and so conducted himself in the presence of the defendant, then the defendant had the right to believe that the said Patton was then and there about to kill him or do him some bodily harm, and that the defendant believed and had reasonable grounds to believe from the conduct of said Alton Patton to avoid such danger either real or to him apparent and it was necessary to shoot the said Alton Patton, you will find the defendant not guilty on the ground of self-defense and apparent necessity."

This instruction is erroneous and later we shall point out proper instructions. We do not recall any evidence that Patton was drunk or that the defendant attempted to arrest him for drunkenness. Defendant's claim is that Patton attempted to rescue one or both the parties defendant had in his official custody by making an assault upon the defendant and that he shot Patton in his necessary self-defense.

Defendant's Theory of the Case.

In such a case as this the defendant does not have to file a written plea, but when he is arraigned and is asked what is his plea, he can and usually does answer "not guilty" and the commonwealth must prove every fact necessary to constitute his guilt, but the defendant may under a plea of not guilty take the stand in his own behalf and admit committing the deed charged (just as the defendant in this case admitted the fatal shooting), and then attempt by his own and other testimony to establish facts to justify or excuse the act charged against him. Then he has a theory of the case to be presented to the jury by appropriate instructions. Gibson v. Com., 204 Ky. 748, 265 S.W.339; Southerland v. Com., 217 Ky. 94, 288 S.W. 1051; Lunce v. Com., 232 Ky. 214, 22 S.W.(2d) 629; Morgan v. Com., 242 Ky. 116, 45 S.W.(2d) 850; Luttrell v. Com., 250 Ky. 334, 63 S.W.(2d) 292; Morgan v. Com., 257 Ky. 691, 79 S.W.(2d) 1.

We shall briefly...