Marcum v. Commonwealth

• Citation: 305 Ky. 92
• Parties: Marcum v. Commonwealth.
• Decision Date: 06 June 1947
• Court: United States State Supreme Court (Kentucky)

305 Ky. 92

Marcum v. Commonwealth.

Court of Appeals of Kentucky.

June 6, 1947.

1. Homicide. — In prosecution for murder of wife based entirely on circumstantial evidence, where wife and daughter had both been killed but by different instrumentalities, and no one saw accused near scene of crime during period that killings occurred, and accused introduced evidence of alibi, instructions should have covered the whole law of the case including voluntary manslaughter, involuntary manslaughter and self-defense.

2. Homicide. — Where evidence of a homicidal crime is entirely circumstantial and the facts lead to an inescapable conclusion

of murder, defendant is not entitled to either of two manslaughter instructions or an instruction on self-defense but where there is evidence of struggle or other unusual circumstance from which jury might infer a lesser degree of crime or an exoneration of it, instructions must cover whole law of the case, including voluntary manslaughter, involuntary manslaughter and self-defense.

Appeal from Wayne Circuit Court.

Duncan & Duncan for appellant.

Eldon S. Dummit, Attorney General, and H.K. Spear, Assistant Attorney General, for appellee.

Before Edwin R. Denney, Judge.

OPINION OF THE COURT BY CLAY, COMMISSIONER.

Reversing.

Appellant, Logan Marcum, was convicted of the wilful murder of his wife, Cora Marcum, and was sentenced to life imprisonment. On this appeal he relies on three grounds for reversal: (1) he was entitled to a peremptory instruction of acquittal; (2) the evidence is insufficient to support the verdict; and (3) the lower Court erred in failing to give an instruction on voluntary manslaughter.

The case against appellant is based entirely on circumstantial evidence. At about 10 o'clock on the morning of October 28, 1946, the body of appellant's wife was discovered in the backyard of their home by a neighbor. She had suffered a stab wound over the heart made by some small instrument, and her face and neck were somewhat scratched and bruised. In the house was also found the body of Mrs. Marcum's seventeen year old daughter, Elizabeth Bell, who had been killed by a shot gun blast in the head.

Mrs. Marcum and her daughter met their deaths some time between 10 minutes after 7 and 10 o'clock on the morning of October 28. They were last seen alive by Mrs. Marcum's two younger daughters who had left for school at 7:10. At approximately 7:15 one of the neighbor's children had come by the house and had called out, but received no response. This neighbor's child said the only thing she heard was some noise in the house which sounded like a chair falling.

Appellant had left the house about 5:30 that morning. He was seen between 5:30 and 6 o'clock by some neighbors who testified that he was going in the direction of a sawmill owned by his son, Etard, which was located about a mile and a quarter from the Marcum house. Appellant and Etard testified that appellant arrived at his son's home at approximately 6:30 a.m. Etard's wife stated that it was shortly after 7:30 when appellant arrived. A neighbor testified that he saw appellant and his son at the mill some time between 7 and 8. No one saw appellant near his home, or going toward it, after 6:30 that morning.

In an attempt to show a motive on the part of appellant, the Commonwealth proved by the two younger daughters that appellant on two occasions had made some sort of threats against his wife. In addition, the...