May v. Com.

• Decision Date: 16 December 1955
• Citation: 285 S.W.2d 160
• Parties: John MAY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 160

285 S.W.2d 160

John MAY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Dec. 16, 1955.

W. W. Burchett, Joseph P. Tackett, A. J. May, Clifford B. Latta, Prestonsburg, for appellant.

J. D. Buckman, Jr., Atty. Gen., W. Owen Keller, Asst. Atty. Gen., for appellee.

STEWART, Chief Justice.

John May was indicted in the Floyd Circuit Court at its January term, 1955, charged with the offense of assault and battery on the person of Burnis Martin. From a judgment of conviction and a fine assessed against him of $1,000, May moves for an appeal.

On the day the altercation arose between these two men, Martin was Commonwealth's attorney of the 31st Judicial District, composed solely of Floyd County, and May was justice of the peace of Magisterial District No. 2 in that county. The testimony discloses there had existed an antagonism of long standing between them, and each, on prior occasions, had sought to embarrass the other whenever their paths crossed.

According to Martin, he was in the office of the circuit court clerk making inquiry as to whether May had satisfied an alleged 'cold' check he had given the clerk in payment of fines and forfeitures he had collected. It was his intention, he asserted, to submit the matter to the grand jury if the check had not been honored. While talking to the clerk on the subject, he was struck four or five times in the back of the head without his knowing anyone had come up behind him and without a word having been spoken. After he had been knocked around the corner of a table before which he had been standing, he recognized his assailant as May, and he then heard the latter say: 'By God, I'll knock the hell out of you.' He afterwards went to the county judge and procured a warrant for May's arrest. The clerk gave substantially the same version of the affray. The clerk added, however, Martin had said nothing derogatory about May in his presence and he had made no effort to return the assault.

May, testifying for himself, stated that when he walked into the clerk's office Martin and the clerk were discussing the check. As he entered, he claimed Martin was accusing the clerk of covering up for him. This excerpt from his testimony described what follows: 'I said: 'Burnis, I have the check in may pocket, I have already paid it,' and I reached in my coat pocket, like that (demonstrating), and pulled the check out and showed it to him, and he said something else. Of course, it just flew all over me when he said that, and he was looking at me when I went to hit him.' He further stated he hit Martin two or three times and 'didn't use nothing but my fist.'

When this case was called for trial a motion to remove Martin as Commonwealth's attorney was filed but overruled by the court. The trial then proceeded with Martin as prosecuting witness and as Commonwealth's attorney. We believe this dual capacity in which Martin acted was perhaps permissible. However, looking at the whole proceeding objectively, we have a strong feeling that another attorney should have tried the action, in order to remove the self-interest factor and thereby reduce to a minimum the display of passion and prejudice that can scarcely be kept in abeyance where, as here, the same person was the victim of the offense and the prosecutor.

Three grounds are relied upon in seeking a reversal of the judgment: (1) That the fine of $1,000 was unreasonable and excessive; (2) that the court erred in failing to instruct the jury on breach of peace; and (3) that the argument of the Commonwealth's attorney to the jury was improper in that it created passion and prejudice in the minds of the jurors.

We are of the opinion that the first contention is without merit. The crime committed can hardly be considered a mere assault upon an individual. If we accept as true the testimony of Martin and that of the circuit court clerk, as no doubt the jury did, the assault was an unwarranted interference with a public official at a time when he was engaged in the performance of his duty, and this fact alone makes the offense a far more serious one than a mere resort to fisticuffs by two private citizens. Furthermore, gravity is added to the offense because May's attack was directed at one of the most important offices in the Commonwealth, at one whose duty it is to uphold law and order. Because of these reasons and because Martin testified he suffered much embarrassment and humiliation personally as a result of the incident we cannot say that the fine was unreasonable or excessive.

The second objection asserting error for not instructing the jury on breach of the peace is likewise untenable. An assault has been defined as 'any attempt or offer with force or violence to do a corporeal hurt to another, whether from malice or wantonness, with such circumstances as denote at the time an intention to do it coupled with the present ability to carry such intention into effect.' See Hixson v. Slocum, 156 Ky. 487, 161 S.W. 522, 51 L.R.A.,N.S., 838. A battery is 'an assault whereby any force, however slight, is actually applied to the person of another, directly or indirectly.' See Gregory's Kentucky Criminal Law Procedure and Forms, Section 131, page 148. Assault and battery constitute a common-law misdemeanor that formerly was punishable by fine or imprisonment,...