Richie v. Com.

• Decision Date: 19 October 1951
• Citation: 242 S.W.2d 1000
• Parties: RICHIE v. COMMONWEALTH.
• Court: United States State Supreme Court — District of Kentucky

Page 1000

242 S.W.2d 1000

RICHIE v. COMMONWEALTH.

Court of Appeals of Kentucky.

Oct. 19, 1951.

Alva A. Hollon, Hazard, for appellant.

A. E. Funk, Atty. Gen., W. Owen Keller, Asst. Atty. Gen., for appellee.

STANLEY, Commissioner.

The appellant, Mary Miller Richie, after two hung juries, was convicted of voluntary manslaughter for the killing of her husband, Kerman Richie, and sentenced to five years' imprisonment. She seeks a reversal of the judgment upon the ground that such a clear case of self-defense was established the court should have directed an acquittal. Other points raised need not be considered.

We first recite the undisputed facts. The parties, with their four small children, lived on Bear Branch of Troublesome Creek in Knott County. Their home was inaccessible except on horseback or by a sled. The decedent was a part time miner and part time moonshiner. His reputation was that of a 'bad man' who was 'awful mean' when drunk, which seems to have been quite a normal condition. He and Mose Combs had made a 'run' of moonshine for their personal use and had been drunk for three days. A short while before he was killed, Richie had gone on a rampage and broken up all the family's dishes. His wife testified, 'He didn't leave a dish to eat stuff out of. When he died we didn't have no dishes to eat out of.' In the afternoon of March 13, 1949, Richie, Combs and the appellant's brother, Leslie Miller, and Harold Gene Yeary, a sixteen year old boy, gathered at the Richie's home for an orgy of drinking. We quote the appellant's undisputed testimony, given in the vernacular of the backwoods, as a vivid description of what occurred upon her return from a neighbor's in the late morning.

'I rode the mare down thar and carried the clothes back in front of me. When I got back to the house Kerman and Mose was in the house and Mose was drunk and the little girls was that and my little boys was scattered out. He never did whup the little girls none. I asked him whar the boys was. He said he didn't know unless the nasty stinking things had run off. He said he was going to whup them. He said he had done and whupped Jink and was going to whup him some more. I hollered for Jink. He was over in the woods thar and he come out of the hill crying. I said, 'What's the matter, Jink?' He said, 'Daddy about beat me to death.' I said, 'Whatever for?' He just pulled his shirt off and I seed the blood was cut out of his back. There was gashes in the youngun's back six or seven inches long. He said, 'Daddy whipped me trying to make me get him the gun to kill you with as you come back up the holler.' He said, 'I told him I wouldn't get the gun cause you was my mommy.' He said, 'When he turned me loose to get him another switch, I got gone.' Kerman was always trying to waylay us and kill us and beating on the younguns.' 'Q. What did you notice about the child's appearance? A. Thar was gashes cut all over his body.' 'Q. What did Kerman say if anything when the child told you that? A. He told the youngun he'd whup him for lying and the youngun looked straight at his daddy and told his daddy, 'You're telling a lie.' He give his daddy the lie. Kerman said he'd whup him and started to but I said, 'No, Kerman, you'll not whup the youngun now' cause the youngun told the truth.'

That afternoon, before his party arrived, Richie had 'got after' his wife with a club and she, with her baby, had run 'over thar' on the hill. It seems she returned to the house when the men got there. Continuing her story----

'Well, he was settin' out in the yard and standing around and Kerman was carrying that club thar around in his hand. I wouldn't mess around where he was at much. I was afraid of him. He kept circuling around and around me with the club, and directly a little old black cat come up behind him. It was a little old cat one of the younguns had there. He picked it up and throwed it in my face and eyes. That made me mad. In a few minutes I picked it up and slung it back at him and told him I wished it would scratch him. He walked up to me with the club and I kinda sauntered off. They was all standing there wasn't saying nothing. He asked Leslie and Harold Gene to drink with him and Leslie told him he was sick, had a hurting in his side, and didn't want to drink. Leslie told him he'd started over to Aster's to get him some backer. I sent the little boy Jink over to the store to get him some backer. Leslie was sick. They rested around until late afternoon and Kerman wanting to take that club in and kill all of them. They was nobody but Mose and the younguns in the house. Mose was down drunk. Leslie said, 'Kerman, I don't believe I would go in there and hurt anybody, especially the younguns. Don't kill your younguns."

There is corroboration of all this, including the use of the cat as a weapon of offense and defense, which, we may observe, was pretty tough on the cat, even a black cat.

It may be here added the evidence reveals the appellant herself is not a model of culture or a paragon of virtue.

Thus, we have the setting for the more tragic scene coming on that night.

The Commonwealth relied for conviction upon the testimony of young Yeary. He testified that he was 'pretty drunk,' as were Richie and Miller, and that Mose Combs was 'plum drunk.' Richie had had Miller 'stew up' the liquor, which was defined as putting in sugar and water and heating the moonshine 'to make it hotter.' mose was too drunk to know what happened and was not introduced as a witness.

Yeary testified they were all sitting around the fire, the children having been put to bed in the next room, and Richie and his wife were fussing. He told her to 'pack your God damn clothes and leave.' She replied, 'I don't want to leave my home tonight, Kerman.' She left the room, and he followed her out. The witness heard a noise which 'sounded like two somebodies running across the porch,' then a gun fire. Richie fell back through the doorway, partly within the room where he and the other two men were. He did not see Richie with any weapon, though as he added, 'there could have been one there for it was dark.' The witness identified a rough hewn ax handle as being the club which Richie had that afternoon when he was 'a settin' on the hill above the house' before he threw the black cat at Mary. This club was found early the next morning on the floor close to the door through which Richie had fallen.

Hiram Jink Richie, father of the deceased, came to the house early that morning, about the time 'the chickens was crowing.' He saw blood where his son had fallen, but the club was not there. When he asked, 'Mary, how happened this?', she replied, 'I don't know. I went to Aster Francis' store and I don't know how it happened.' The store was 'over the gap of the mountain a little ways.' That is such an unlikely statement that telling it discredits the witness and destroys his testimony that the club was not there at that time.

The defendant admitted having said Kerman had killed himself, but went on to explain she meant that he had brought about his own death by his attack upon her.

This was all the evidence of the prosecution except testimony of a few indefinite and remote threats or statements in the nature of threats by the defendant against her husband. One was made during a violent quarrel between them, and another, uncommunicated, was related by a garrulous old woman as having been said five or six months before the killing while she was pretending to read Mary's palm as a fortune teller. There is proof also that the deceased had threatened to get rid of his wife. A short time before, cursing her and his children, he said to a neighbor he was going home and kill them all, pile them up and blow them into eternity with a case of dynamite. Considering the characteristics of the man and woman, these impress us as but little more than reflections of their rough and turbulent lives.

At the expense of space we quote the defendant's account of the immediate events because of its natural and vivid character. She testified:

'I was setting there by the fire and all at once he told me to get my clothes and leave. I said, 'Kerman, it's dark. I don't want to leave my younguns they're in here away from the fire and they might get the cover off and freeze.' I knew my baby would get the cover off. He said, 'If you don't get your clothes and go goddamn you I'll kill you.' I said, 'You'll just have to kill me I ain't leaving.' I just sot thar a minute. Then I got up and went out of the house. Kerman followed me out on the porch. He was wanting to fight me. He stepped out on the ground and I was standing on the porch. I says, 'Kerman, I ain't going to fight you.' I had been sick three or four days and so I went back in the house and sot down. He come back in then and sot awhile. They was all talking. I wasn't saying nairy word. All at once after he'd sot thar...