Owens v. Com.

• Decision Date: 03 November 1972
• Citation: 487 S.W.2d 897
• Parties: Norman Lee OWENS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 897

487 S.W.2d 897

Norman Lee OWENS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Nov. 3, 1972.

Carl R. Clontz, Allen, Clontz & Cox, Mt. Vernon, Smith & Blackburn, Somerset, for appellant.

Ed W. Hancock, Atty. Gen., M. Curran Clem, Asst. Atty. Gen., Frankfort, for appellee.

OSBORNE, Justice.

The appellant is assistant cashier and manager of the Portland Branch of the First National Bank of Louisville. He had been vacationing near Russell Springs, Kentucky, where he was living in a cabin and fishing. On the day of the fatal occurrence in question, he arose early in the morning, went fishing, and while so engaged drank a couple of beers. It was his testimony that he returned to the cabin, where he may have had another beer, and proceeded to spray the cabin with a pesticide. Shortly after spraying the cabin he became violently ill and vomited. Later on, somewhere approaching noon (the testimony is somewhat confusing as to time) he drove toward Somerset. At the edge of the city limits of Somerset while, according to his testimony, driving 30 to 35 miles per hour on a wet road in the rain and rounding a curve to his left, he had a head-on collision with a Volkswagen automobile driven by Ira Redmon Girdler. Mrs. Girdler died as a result of the injuries sustained in the collision.

Appellant was indicted and tried for the offense of involuntary manslaughter. KRS 435.022. The court also instructed the jury under KRS 435.025, negligent homicide with an automobile. The jury found appellant guilty of manslaughter in the second degree and fixed his punishment at a non-month jail sentence and a $5,000 fine.

Appellant makes two contentions of error concerning the trial. First, he complains that the trial court erroneously failed to instruct the jury to acquit him if the collision was accidental. Second, he complains that the trial court erred in admitting in evidence the results of a breathalyzer test. We will deal with these contentions in their respective order.

Appellant contends that he was entitled to an affirmative instruction that if the collision was the result of an accident he should be acquitted. In support of this contention he relies on Hemphill v. Commonwealth, Ky., 379 S.W.2d 223, Hill v. Commonwealth, Ky., 339 S.W.2d 170, and Cody v. Commonwealth, Ky., 449 S.W.2d 749. We do not believe the Cody case is in point as it dealt with the court's denial of a sudden emergency instruction. The trial court did give an instruction on accident as a defense and we held the instructions were not prejudicial. In Hemphill we were dealing with a shooting incident resulting from an affray and we do not consider that case to be squarely in point. Hill v. Commonwealth is in point. There we held the defendant being tried for involuntary manslaughter for the striking of a pedestrian with an automobile was entitled to an accident instruction. That case cited with approval and followed Marye v. Commonwealth, Ky., 240 S.W.2d 852, and Monson v. Commonwealth, Ky., 294 S.W.2d 78. In Hill we quoted extensively from Monson v. Commonwealth, at 81, as follows:

'Since the Marye case and the enactment of KRS 435.025, the negligent homicide statute, doubt has been expressed as to whether an instruction on accidental killing by auto is proper. There is no reason perceived why the creation of a lesser included offense should deprive the accused of an instruction to which he previously had been entitled.'

Following the above quotation we pointed out that appellant's whole defense was based on the idea that he was not guilty of negligence in any sense and the accident was caused by the negligent and erratic conduct of the decedent. The Attorney General in the case before us points to this language and insists that an affirmative instruction on accidental killing is not warranted unless the defense is one that points to negligence on the part of the decedent. We believe this to be a thin line of distinction and one that would be almost impossible to follow consistently.

The problem of when a defendant in a criminal prosecution is entitled to an affirmative instruction in this jurisdiction is, to say the least, somewhat confusing. We have in the books, for example, cases such as Frazier v. Commonwealth, 291 Ky. 467, 165 S.W.2d 33, wherein this court stated at 35:

'A special instruction submitting a defense is not required except where it is something in the nature of the civil plea of confession and avoidance, that is, that the defendant did the act but should be excused for some legal or affirmative reason.'

On the other hand, we have broad general statements of the law starting with Agee v. Commonwealth, 5 S.W. 47, 9 Ky.Law Rep. 272, wherein the principle is stated that in a criminal prosecution, instructions applicable to every state of the case deducible from the testimony or supported by it to any extent should be given to the jury. This was followed by such cases as Shelton v. Commonwealth, 145 Ky. 543, 140 S.W. 670, wherein we stated the rule that the accused is entitled to an instruction submitting his theory of the case as disclosed by his testimony when there is a contradiction between his testimony and that of the prosecution. If one pursues the subject in depth it soon becomes apparent that no one specific rule is applied in all cases alike, viz., one rule may apply in local option cases, another in murder and another in storehouse breaking. As an example, in Baker v. Commonwealth, Ky., 288 S.W.2d 56, this court pointed out that in a prosecution for storehouse breaking, defendant who denied entering the store, was not entitled to a special instruction on his theory of the case, which was that he merely took some gasoline and was not guilty of the offense of storehouse breaking. Some of our latest pronouncements on the subject can be found in cases like Iles v. Commonwealth, Ky., 455 S.W.2d 533, where we held that one accused of driving...