Norton v. Com.

• Decision Date: 01 October 1971
• Citation: 471 S.W.2d 302
• Parties: Billy NORTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 302

471 S.W.2d 302

Billy NORTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Oct. 1, 1971.

H. M. Shumate, Thomas D. Shumate, Shumate, Shumate & Flaherty, Irvine, for appellant.

John B. Breckinridge, Atty. Gen., Laura L. Murrell, Asst. Atty. Gen., Frankfort, for appellee.

DAVIS, Commissioner.

Charged with the murder of Jesse Johnson, Billy Norton was convicted of voluntary manslaughter and sentenced to imprisonment for 21 years. He advances the following charges of error: (1) The verdict is flagrantly against the evidence, and without evidence to support it; (2) incompetent evidence was admitted; (3) the instruction on voluntary manslaughter should not have been given; and (4) improper argument was made by the Commonwealth's Attorney.

On May 6, 1969, at approximately 10:30 p.m., Jesse Johnson was assassinated as he alighted from his car in the driveway by his home in West Irvine. There was no direct evidence as to the identity of his slayer. The victim's fifteen-year-old son and another young man, who later married decedent's daughter, were standing nearby when the fatal shots were fired. The shots appeared to come from a lot on which Johnson had parked some heavy equipment. Decedent was in an area well illuminated by a floodlight. The shots came from a darkened place, and neither of the two young men with the slain man saw the killer.

The evidence for the Commonwealth presented the following circumstances, which the appellant maintains are insufficient to support a verdict of conviction against him. It is unnecessary to recount countervailing evidence presented by the appellant.

Two witnesses, Mr. and Mrs. James Grace, testified that appellant came to their home about 6:30 p.m. on the day of the homicide. Mr. Grace and appellant swapped automobiles. Incident to the trading of cars, appellant removed a gun from the car he traded to Grace, along with some shells or cartridges. He placed the cartridges, which appeared to be shiny brass, in his pocket but tossed on the ground a small cartridge case which Mrs. Grace retrieved. That case was presented in evidence. Both Mr. and Mrs. Grace testified that Norton, the appellant, appeared to be 'drinking.' Each of them declared that Norton made reference to the alleged mistreatment of Norton's father by Johnson (the victim). Mrs. Grace testified as to her recollection of Norton's statement:

'Well, Bill (Norton) said that Jesse (Johnson) had pushed his daddy around that day, and he said, 'Nobody pushes my daddy around and gets away with it I'm going to kill him,' and he was cussing.'

Mr. Grace's testimony on that point was only slightly different. After relating that Norton told of Johnson's mistreating Norton's father that day, allegedly in company with another man, Mr. Grace testified:

'He said that they drawed a gun on his daddy and pushed him around, that he couldn't help himself, that he was sick, and something ought to be done or there was no excuse for it, stuff like that.

'Said that he (Johnson) ought to be took out and killed.'

The Graces said that Norton told them, as he left, that he was going to gig fish.

Norton presented an alibi defense, saying that he had been gigging fish from about 9:00 p.m. on May 6, 1969, until approximately 3:30 a .m. the next morning. With him he said, were G. B. and Raymond Kelly. They corroborated this alibi testimony. However, there was some countervailing evidence in this respect. A witness testified that he saw Norton at Gumm's Restaurant about 9:00 p.m. that night. Norton denied being at the restaurant at that time.

For reasons not disclosed in the record, two state troopers who were investigating the crime scene went to Norton's home about 3:00 a.m. on May 7th, but found that he was not there. They talked to Norton's father. A few days later, Norton sent word to the state troopers that he had learned of their question for him, and invited an interview.

State Trooper Babb, in company with two other officers, interviewed Norton on May 13th, at which time Norton said that he was innocent of the killing of Johnson. He told the officers he had been fishing on Buck Creek (about eight miles from the crime scene) with three Kelly brothers. At the trial, Bill Kelly, one of the three, testified that Norton had offered him a bribe to swear he was fishing with him at the time in question. Norton and the other two Kelly brothers said that Bill had not gone fishing because Bill was too drunk. Norton explained that he had previously fished with all three of the Kelly brothers, and that his earlier statement was an understandable lapse of his memory.

At the same interview, according to Officer Babb, Norton denied that he had even owned a 30--30 caliber rifle. The proof showed that Norton had purchased a 30--30 caliber Marlin lever-action rifle in Lexington on April 18, 1969.

Norton's version of this apparent discrepancy was that Officer Babb asked him whether he had ever owned an M--1 rifle, to which he truthfully replied that he had not. He further related that the officer asked him whether he 'now owned' a 30--30, or other high-powered rifle, to which he truthfully answered 'no,' because he had sold the Marlin before the interview and before Johnson was shot .

Norton denied he had made threats toward Johnson, or even discussed him with Mr. and Mrs. Grace. He denied undertaking to bribe Bill Kelly to support his alibi. He asserted that he and Johnson were 'friends,' and that no ill will existed between them, despite a showing that Norton had appeared before a grand jury which indicted Johnson and others for allegedly 'ambushing' Norton with a gun.

At about 10:15 a.m. on May 7th, attorney Eugene Watson (who assisted in the prosecution of this case, as county attorney of Estill County) pointed out to State Trooper Sims two spent cartridge cases of 30--30 caliber. Officer Sims said that the same area had been searched earlier in darkness, without discovery of the empty cartridge cases. By innuendo, at least, the defense suggests that these cases were 'planted' at the scene, but there was no direct proof of it. The cartridge cases were found at a point 144 feet from the spot where Johnson fell mortally wounded. These two shells were examined by a technician qualified in ballistics, who compared them with a third shell, the source of which will later appear. The technician testified that the three shells bore identifiable markings from the breech-face and firing pin of the weapon from which they were fired which enabled him to say that all three of them were fired from the...