Jones v. Commonwealth
| Decision Date | 02 March 1926 |
| Citation | 213 Ky. 356 |
| Parties | Jones v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
1. Criminal Law — Words, "to the Exclusion of a Reasonable Doubt," in Defensive Instruction are Prejudicial Error. — In defensive instruction, jury are only required to believe facts on which instruction is based, and words, "to the exclusion of a reasonable doubt," in such instruction, are prejudicial error.
2. Homicide — Failure to Define "Gross Negligence," "Reckless," and "Wanton," in Instructions on Voluntary and Involuntary Manslaughter and Accidental Homicide, is Error. — In prosecution for running over child with automobile, causing its death, failure of court to define words "gross negligence," "reckless," and "wanton," used in instructions on voluntary and involuntary manslaughter and accidental homicide, was error.
3. Automobiles — Failure to Instruct on Murder Held Proper, where there was no Malice or Intentional Killing of Child by Automobile. — In prosecution for running over child with automobile, causing its death, it was proper not to instruct on murder, where there was no intimation of malice or intentional homicide.
4. Homicide — "Voluntary Manslaughter" Requires Homicide to be Willfully and Intentionally or Recklessly and Wantonly Committed. — "Voluntary manslaughter" requires homicide to be willfully and intentionally committed, or committed so recklessly and wantonly as to be felonious, though not intended.
5. Homicide — Homicide Committed by Wanton, Reckless, or Criminally Careless Handling of Firearms is Voluntary Manslaughter, Though there is no Intention to Kill. — Homicide committed by wanton, reckless, or criminally careless handling or discharging of firearms, in method the user knows to be dangerous to human life, is voluntary manslaughter, though there is no intention to kill.
6. Automobiles — Automobile Driver Charged with Natural and Reasonable Consequences of Conduct. — Automobiles are not to be classed with deadly weapons, but, if improperly handled, they are dangerous instrumentalities, and driver is charged with natural and reasonable consequences of his conduct.
7. Automobiles — Killing by Operating Automobile in Manner Reasonably Calculated to Injure is Voluntary Manslaughter. — One operating automobile in manner reasonably calculated to injure others using highway, and thereby recklessly, wantonly, and with gross negligence striking and killing another, is guilty of voluntary manslaughter.
8. Homicide — Killing of Another in Doing an Unlawful Act, Not a Felony, and Not Endangering Human Life, or While Doing a Lawful Act in Unlawful Manner, is "Involuntary Manslaughter." — "Involuntary manslaughter" is killing of another in doing some unlawful act, not amounting to a felony, and not likely to endanger human life, or in killing another while doing a lawful act in an unlawful manner; there being an absence of intention to kill in each instance.
9. Homicide. — Words "gross negligence," used in defining voluntary manslaughter, are equivalent to words "reckless and wanton."
10. Homicide — Gross Negligence Required to Make Killing while Performing a Lawful Act Involuntary Manslaughter. — To constitute involuntary manslaughter at common law, a person killing another while engaged in performance of a lawful act must be guilty of gross negligence.
11. Automobiles — Proper Instruction on Meaning of Words "Reckless," "Wanton," "Carelessly" and "Negligently," and "Ordinary Care" Stated in Prosecution for Killing with Automobile. — In prosecution for running over child with automobile, causing its death, proper instruction on meaning of words "reckless," "wanton," "carelessly" and "negligently." and "ordinary care" stated.
12. Automobiles — Proper Instructions on Voluntary and Involuntary Manslaughter and Accidental Homicide in Operating Automobile Stated. — In prosecution for running over child with automobile causing its death, proper instructions on voluntary and involuntary manslaughter and accidental homicide stated.
13. Automobiles — Proper Instruction as to Disposition of Case, if Jury has Reasonable Doubt of Guilt or Degree of Automobile Driver's Guilt, Stated. — In prosecution for running over child with automobile, causing its death, proper instruction as to disposition of case, if jury has reasonable doubt of guilt or degree of guilt, stated.
14. Automobiles — Evidence as to Number of Children on Pavement Held Incompetent in Prosecution for Killing Child by Automobile, but Evidence as to Use of Place Generally Competent. — In prosecution for running over child with automobile, causing its death, evidence of number of children on pavement and not near decedent is incompetent, but evidence that place is generally used by number of children at particular hour of day is competent.
15. Criminal Law — Remarks of Prosecutor Describing Defendant and His Witnesses as Bootleggers and Liars Held Reversible Error, and Not Cured by Instruction to Consider Only Law and Facts. — In prosecution for running over child with automobile causing its death, remarks of prosecutor, dehors the record, describing defendant and his witnesses as bootleggers and liars, was reversible error, which was not cured by instruction to consider only the law and facts.
Appeal from Pike Circuit Court.
DAUGHERTY & BARRETT for appellant.
FRANK E. DAUGHERTY, Attorney General, and CHARLES F. CREAL, Assistant Attorney General, for appellee.
Reversing.
Talmage Jones was convicted of the crime of manslaughter and on this appeal urges numerous grounds for reversal. The facts are: A public school building is situated on Seventh street, in Pikeville, about three blocks from Cline street. School had closed for the afternoon, and some fifty or sixty children were walking along the pavement; Della Smallwood and her sister being considerably in advance of the others. These two children had moved to town from the country three or four days before and were not familiar with street traffic. Della started across Seventh street at its intersection with Cline and it appears had turned and was going back at the time she was struck. A merchant who was just inside a store door on the opposite side of the street testifies that appellant drove his car up Cline street and turned rapidly into Seventh; he saw the little girl waver in front of it and start backward; the passing machine obscured his vision and he did not see her at the time she was struck. He ran over to where she was, but in the meantime her sister had dragged her to the curb. The machine was running rapidly but was stopped, and appellant returned and assisted in carrying the child to the hospital. He located the place the machine stopped and measured the distance between where the child lay and where the machine was stopped, this being forty feet.
Another witness who was engaged in flagging at a street crossing testifies that the machine turned in Seventh street, going at the rate of thirty miles per hour and when it struck the child the impact threw her several feet in the direction the machine was going; that the driver was unable to stop the machine until it had run forty feet. The child was mortally wounded and died later.
On the other hand, defendant testifies that he is a traveling salesman; that he had been on lower Cline street to visit a customer, being accompanied by a friend. On their return, as they approached the Seventh street intersection, they met a car not under control coming down the center of the street; there were cars parked on each side of the street, and this required him to stop his car behind the one on the right-hand side, which he did, stopping within twenty feet of the street intersection. After the car had passed he started his machine slowly, turning around the intersection at not exceeding ten miles per hour. Seventh street is about twenty-five feet in width; before he reached the intersection the little girl ran in front of his car; he was making a left-hand turn and the little girl was safe before she turned and ran back; when she did this he swerved his car as far as he could to the left; he was unable to tell whether he struck...
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