Roy v. Commonwealth
| Decision Date | 12 October 1973 |
| Citation | 500 S.W.2d 921 |
| Parties | Larry H. ROY and Donald E. Ault, Appellants, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | Supreme Court of Kentucky |
Donald W. Jones, Princeton, for appellants.
Ed W. Hancock, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee.
Appellants Larry H. Roy and Donald Eugene Ault were found guilty of escaping from a state penitentiary, a crime denounced by KRS 432.390. Their punishment was fixed at three years' imprisonment. They appeal. We affirm.
While incarcerated Roy and Ault had been assigned as 'nurses' in the prison hospital. Their defense for escaping was 'coercion and necessity,' sometimes called 'duress.' They testified that as prison 'nurses' they had access to narcotics and that they had been threatened with bodily harm by other inmates unless they stole drugs and supplied them to the prisoners. They contended that their choices were to steal and supply the drugs or refuse to do so and suffer the consequences, which they believed would be serious bodily injury or even death. The defense of 'coercion and necessity' has been recognized in Nall v. Commonwealth, 208 Ky. 700, 271 S.W. 1059 (1925), and Kinslow v. Carter, Ky., 282 S.W.2d 141 (1955).
Appellants produced Dr. Robert Hyde, a physician, for the purpose, they say, of showing that another prisoner, the successor of appellant Ault as a prison 'nurse,' was killed shortly after he succeeded Ault and at a time when he had narcotics in his possession. This testimony was to illustrate and reveal the real danger of not supplying narcotics as demanded. The court sustained an objection to this witness' testifying, which appellants claim was prejudicial error.
We are unable to determine if they were prejudiced as they did not avail themselves of RCr 9.52, which authorizes a party to present rejected testimony by the use of an avowal. Having failed to take advantage of this rule, they cannot rely on this alleged error. Baker v. Commonwealth, Ky., 482 S.W.2d 766 (1972).
Appellants also claim error because the trial court refused their request to instruct the jury as to 'coercion and necessity (duress)' as a defense. The Commonwealth concedes that The Commonwealth...
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