Kearns v. Commonwealth
| Decision Date | 10 May 1932 |
| Citation | 49 S.W.2d 1009,243 Ky. 745 |
| Parties | KEARNS v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Bell County.
Leslie Kearns was convicted of voluntary manslaughter, and he appeals.
Reversed.
J. G Rollins, of Pineville, for appellant.
Bailey P. Wootton, Atty. Gen., and H. Hamilton Rice, Asst. Atty Gen., for the Commonwealth.
This homicide occurred in an unusual way. In the late evening of May 2, 1931, the appellant, Leslie Kearns, his brother Frank, and three or four other young men were loitering in front of a confectionery in Middlesboro. As Eugene Rosenfield, another young man, went into the restaurant, or as he came out after a few minutes in there, Leslie Kearns addressed him as a "stool pigeon," but he ignored the remark. Then Kearns called, "Hello you s_____ of a b______." Rosenfield paid no attention to him, and then the appellant called to him, "Hey, you bastard, come back and fight." Rosenfield then turned about, came back, and said to him, "Why do you pick on me," or "I don't see why there should be any trouble." Kearns repeated, "I want to fight you," and took off his coat. Rosenfield then said if there was going to be a fight, they had better go up an alley or closed street near by. The two boys and others then went into the alley and engaged in a fight. It appears from the evidence of the commonwealth's witnesses that, as Rosenfield was getting the best of Kearns, his brother, Frank, seized him, and then another boy grabbed Frank. There seems to have been two fights going on for a brief period. While the appellant had Rosenfield's head under his arm, another boy separated them. When Kearns loosened his hold on Rosenfield, the latter slumped down in an unconscious condition. Some of the boys upon examination found his heart beating, and all of them thought that he was simply "knocked out." Frank Kearns went for some water for the purpose of reviving him, and other aid soon reached the injured boy. There is evidence that the appellant walked out of the alley and boasted, "When we take them in the alley we come back without them." When the Rosenfield boy was taken to the hospital it was found that he was dead. He had some superficial bruises on his face and head and on his shoulder. X-ray pictures were made of the body and an examination of the plates indicated that Rosenfield had suffered a separation of the vertebrae of the neck. There was also some evidence of blood in his ears and nostrils. The blood in the ear was a symptom of serious injury within. The doctors who examined the body testified that he had died from some internal injury due to violence, and that his death was attributable either to a ruptured blood vessel or the separation in the vertebrae.
The evidence of the defendant is not materially different, except that it tends to prove that some one in the crowd of boys other than Leslie Kearns had called Rosenfield a "stool pigeon," and that he (the deceased) precipitated the fight and was the aggressor. There is also a denial that Leslie Kearns called him the epithets, or that he made the boasting statements attributed to him. Kearns testified that Rosenfield struck him, and then in football fashion came at him with his head down and struck his shoulder against Kearn's hip, whereupon he caught him around the neck, and another boy, in endeavoring to separate them, spun them around and he loosened his hold on Rosenfield. There is some evidence tending to corroborate him.
Leslie and Frank Kearns were indicted for murder, and on their joint trial Frank was acquitted and Leslie found guilty of voluntary manslaughter and given three years in the penitentiary. Instructions on murder, voluntary manslaughter self-defense, and defense of one another were given. It was prejudicial error not to have given an instruction on involuntary manslaughter, as the appellant contends. These boys had been on friendly terms and there had been no previous trouble between them. None of the participants in the affray was armed and no kind of weapon was brought into use. Though, according to the commonwealth's evidence, the fight was provoked by the appellant, apparently because of a degree of intoxication, and his conduct was wrong as a breach of the peace, the fight was simply what everybody calls a fair fist fight. The only evidence tending to prove malice or a wilful homicide was that of the epithets, the invitation to a combat, and the fight itself. From...
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Sikes v. Com.
...probable. Thomas v. Commonwealth, 86 S.W. 694, 27 Ky.Law Rep. 794; Smith v. Commonwealth, 228 Ky. 710, 15 S.W.2d 458; Kearns v. Commonwealth, 243 Ky. 745, 49 S.W.2d 1009; Sanders v. Commonwealth, 265 Ky. 671, 97 S.W.2d Cook v. Commonwealth, 285 Ky. 749, 149 S.W.2d 507; Bailey v. Commonwealt......
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Sikes v. Commonwealth
...Thomas v. Commonwealth, 86 S.W. 694, 27 Ky. Law Rep. 794; Smith v. Commonwealth, 228 Ky. 710, 15 S.W. 2d 458; Kearns v. Commonwealth, 243 Ky. 745, 49 S.W. 2d 1009; Sanders v. Commonwealth, 265 Ky. 671, 97 S.W. 2d 584; Cook v. Commonwealth, 285 Ky. 749, 149 S.W. 2d 507; Bailey v. Commonwealt......
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White v. Com.
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