Sikes v. Com.

• Decision Date: 28 March 1947
• Citation: 200 S.W.2d 956,304 Ky. 429
• Parties: SIKES v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

200 S.W.2d 956

304 Ky. 429

SIKES v. COMMONWEALTH.

Court of Appeals of Kentucky

March 28, 1947

Appeal from Circuit Court, McCracken County; Joe L. Price, Judge.

Elmer B. Sikes was convicted of voluntary manslaughter, and he appeals.

Reversed.

Fisher & Reed, of Paducah, for appellant.

Eldon S. Dummit, Atty. Gen., and Guy H. Herdman, Asst. Atty. Gen for appellee.

STANLEY Commissioner.

A novel question in the law of homicide is presented; one that undoubtedly has been lurking in many cases. It concerns the appropriate instruction on self-defense as the counterpart of an instruction on involuntary manslaughter where the defendant struck the deceased with his fist to meet an assault being made upon him in the same way.

At a Fourth of July picnic in Paducah, the appellant, Elmer Sikes under the influence of liquor, picked a quarrel and fight with William Hogan. After they had been separated, Bernice Wheatley remonstrated with Sikes for cursing in the hearing of ladies. Whereupon Sikes struck him with his fist on the jaw. Wheatley soon died from a cerebral hemorrhage caused by the blow. Sikes' companion, Mullins, had struck Wheatley just before he did. That is the evidence for the Commonwealth. According to the defendant, Hogan had precipitated their quarrel, and Wheatley, who seems to have been a stranger to all the parties, said something Sikes did not understand and then struck at Mullins who hit him in the neck. He stepped back and came towards Sikes, 'acting like he was going to strike me.' He struck Wheatley in the body in defense of himself. Rebuttal evidence was that Wheatley made no attack on either Sikes or Mullins, and that Sikes had struck a hard blow after Mullins had hit Wheatley.

Approved instructions on murder, voluntary manslaughter and involuntary manslaughter were given. Smith v. Com., 228 Ky. 710, 15 S.W.2d 458; Instructions to Juries, Stanley Sec. 876. The defendant was found guilty of voluntary manslaughter and his punishment fixed at four years' imprisonment in the penitentiary.

The instruction on self-defense was that the jury should acquit the defendant if they found that when he struck the deceased, if he did so, 'he believed and had reasonable grounds to believe that he was then and there in danger of death or the infliction of some great bodily harm at the hands of Wheatley and that it was necessary, or believed by the defendant in the exercise of a reasonable judgment, to be necessary to strike the deceased in order to avert that danger, real or to the defendant apparent.' This follows the conventional pattern. The point is made that the defendant, of course, did not have reasonable grounds to believe that he was in imminent danger of either death or great bodily harm at the hands of Wheatley when he was attempting to strike him only with his fist; that he had the right to stand his ground and repel the force of Wheatley's attack with such force as seemed reasonably necessary to protect himself from any injury, whether it would be trivial or serious, that he believed or could reasonably apprehend might result. It is submitted that he was entitled to have the jury so instructed.

Man-made law is not blind to human nature; at least self preservation. So one is not held accountable for taking the life of another in resistance of an attack which from its nature creates a reasonable apprehension of imminent danger of losing one's own life or of suffering great bodily harm. Naturally, lesser correlative degrees of attack and defense receive the same sanction of the law. Generally speaking, the reciprocal standard or measure of force and violence is the same. It is essential that the defensive act not be excessive or disproportionate to the force involved in the attack. But the person under attack is not required to measure the force necessary to protect himself 'with as much exactness as an apothecary would drugs on his scales.' The measure is what in the exercise of a reasonable judgment under the circumstances is required to avert the danger. That is all the law demands. Carroll v. Commonwealth, 83 S.W. 552, 26 Ky.Law Rep. 1083; Commonwealth v. Beverly, 237 Ky. 35, 34 S.W.2d 941; Warren on Homicide, Sec. 149. This rule is exemplified by the familiar instruction on self-defense.

When the court informs the jury as to the range and measure of their power, he instructs them in substance that if they believe beyond a reasonable doubt that the accused slew another person intentionally and with premeditation, they should find him guilty of murder and direct that his own life be forfeited or his liberty be taken away so long as he shall live. If they find that he killed the other person intentionally, but did so under a sudden impulse and without premeditation, they should find him guilty of voluntary manslaughter and direct his imprisonment for any time between two and twenty-one years. But always where there is a rational basis for it the court must give a reciprocal or countervailing instruction that the jury should not find him guilty if they reach the conclusion that the defendant believed and had reasonable grounds to believe that he, himself, was then in danger of being killed or of suffering great bodily harm. The phrase 'great bodily harm' has been used as the criterion from the earliest period of the law. Short v. Commonwealth, 4 S.W. 810, 9 Ky.Law Rep. 255. This eliminates fear of trivial or minor injury as a defense. It is to say in effect that when a person is confronted with an apparently fatal situation, he may use the same degree of force and violence as his assailant. If he does that and no more in preventing the victim from committing a felony on him, he is excused from the legal effect of what otherwise would be a felony committed by himself. But no person has the right to kill another for violence directed at himself that is or seems to be less than a felony. He has no right to kill in order to prevent a mere trespass on his body or a simple assault--a misdemeanor--for it is not accompanied by any imminent peril to his own life. If he does use more force than is required, reasonably and apparently, or commit what would otherwise be a more serious offense, he is not entitled to be excused. Warren on Homicide, Sec. 149; Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528.

In this state involuntary manslaughter continues to be dealt with as a common law misdemeanor, punishable by fine or imprisonment in jail, or both, without limit. The offense embraces the killing of another person in doing some unlawful act not amounting to a felony nor of a character of itself likely to endanger life, without malice or an intention to kill, and also the killing of another while doing a lawful act in an unlawful manner. Conner v. Commonwealth, 76 Ky. 714. The vital difference between voluntary and involuntary manslaughter is in the state of mind. In one case intention and impulsion to kill are present. In the other, intent is absent and the impulse to do the act may or may not be sudden.

In this case the instruction on involuntary manslaughter was required, for the jury could believe beyond a reasonable doubt that the defendant committed the misdemeanor in striking the deceased with his fist without any intention of killing him. Ordinarily a blow with a fist does not imply an intent to kill, for that result is not probable. Thomas v. Commonwealth, 86 S.W. 694, 27 Ky.Law Rep. 794; Smith v. Commonwealth, 228 Ky. 710, 15 S.W.2d 458; Kearns v. Commonwealth, 243 Ky. 745, 49 S.W.2d 1009; Sanders v. Commonwealth, 265 Ky. 671, 97 S.W.2d 584; Cook v. Commonwealth, 285 Ky. 749, 149 S.W.2d 507; Bailey v. Commonwealth, 288 Ky. 613, 157 S.W.2d 100; Payne v. Commonwealth, 289 Ky. 590, 159 S.W.2d 430; Rush v. Commonwealth, 296 Ky. 724, 178 S.W.2d 408; Annotations, 15 A.L.R. 675, 24 A.L.R. 666. That instruction properly predicated the finding of guilt upon the belief beyond a reasonable doubt that Wheatley's death resulted from the defendant having struck him with his fist when the defendant had reasonable grounds to believe that the striking was not reasonably calculated to produce his death or that the striking was without an intention to produce a fatal injury. Stanley's Instructions to Juries § 876.

The defendant claimed he struck Wheatley because he was coming upon him 'acting like he was going to strike me.' Whatever he might have done to Sikes would have been with his fist for he was not armed. The defendant had reason not to be in fear of his life or of great bodily harm at the hands of his assailant, and, therefore, may have measured his actions accordingly. Under his claim, our fundamental rules permitted Sikes to stand his ground. It is traditional Kentucky law that a man does not have to act the coward and run, or 'retreat to...