White v. Com.

• Decision Date: 16 March 1962
• Citation: 360 S.W.2d 198
• Parties: Cord WHITE, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 198

360 S.W.2d 198

Cord WHITE, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

March 16, 1962.

Rehearing Denied Oct. 12, 1962.

Marcus Mann, Slayersville, for appellant.

John B. Breckinridge, Atty. Gen., John B. Browning, Asst. Atty. Gen., for appellee.

CULLEN, Commissioner.

Cord White, Jr., was convicted of voluntary manslaughter and given a 10-year sentence. On appeal to this Court the conviction was reversed because of errors in the instructions. White v. Commonwealth, Ky., 333 S.W.2d 521. Upon a second trial White was again convicted and a sentence of 21 years' imprisonment was imposed. The present appeal is from the judgment on the second trial.

On the first appeal this Court held that the evidence was insufficient to warrant a finding of malice and therefore an instruction on murder was not authorized. However, with some misgivings, the Court held that the evidence was sufficient to support an inference of intent to kill, such as would authorize an instruction on voluntary manslaughter. We are constrained now to reconsider the question of the sufficiency of the evidence (which was substantially the same on the second trial as on the first trial) to support a finding of intent to kill.

We shall set forth the circumstances of the killing as stated by the Commonwealth's witnesses.

Some seven or eight persons, including the defendant and Graden Jett, the victim, had been engaged for a couple of hours in social conversation and moonshine drinking at a spot on a narrow mountain road. Around a half-gallon of moonshine was consumed. A dispute arose between the defendant's brother and one Ernest Turner, after Turner had driven the brother's car down the mountain and had been gone what the brother considered an unnecessarily long time. The brother and Turner started to scuffle and fell to the ground locked in combat. Graden Jett arose from a seated position on the roadbank and gave indications of an intent to enter the struggle. The defendant warned him to stay out of the fight, as it was not his concern. Jett said, 'I will do what I want to do.' The defendant then struck him a fist blow in the face, knocking him down. The defendant then struck Junior Watkins, who had ventured to join the affray, and knocked him down. The defendant next returned to Jett, who was on the ground, and struck him two or three times in the face. In the meantime the struggle between Turner and the defendant's brother had been terminated, and the defendant and Turner engaged in a wrestling scuffle for a few moments. Watkins then left the scene to get a gun and the defendant did likewise. The defendant got back to the scene first and when Watkins appeared the defendant fired a couple of shots but they did no harm. The defendant's stepfather relieved the defendant of his gun and also prevailed upon Watkins to surrender his gun. Such of the participants as had not already departed the scene then went their respective ways, leaving Jett either lying or sitting on the roadbank. No one was aware that he had suffered a fatal injury; everyone assumed that he had 'passed out' mainly from the effects of the moonshine. A short time later, when Jett's wife and some friends came to carry him home, they found he was dead.

Two lay witnesses who examined the body testified that Jett's neck was broken. One of these, the coroner, who was a licensed embalmer, also testified that there were bruises on Jett's face that would have been sufficient to cause death. However, Jett's wife and another witness who viewed the body said only that there were two bruises on the face, one around the mouth and the other on a cheek. (The coroner said that both eyes were swollen shut and there were numerous bruises on the face.)

The question is whether the foregoing evidence is sufficient to warrant a finding of an intent to kill, as is necessary to sustain a conviction of voluntary manslaughter.

The view accepted in most jurisdictions is that the mere fact that death ensues from a blow with the hand or fist does not of itself permit an inference of an intent to kill. However, the nature of the attending circumstances, such as the use of excessive violence or brutality or the taking of undue advantage of a weak, helpless or unsuspecting person, may give rise to an inference of the intent to kill. Annotation, 22 A.L.R.2d 854.

There is some inconsistency reflected in our Kentucky cases on the question. However, in most of the cases where an instruction on murder or voluntary manslaughter was held authorized there was some evidence other than the mere fact of death from a blow of the fist to raise an inference of an intent to kill. In Thomas v. Commonwealth, 120 Ky. 428, 86 S.W. 969, the defendant, after having threatened to kill the woman he was living with, knocked her down with his fist and then kicked her several times in the stomach, side and face. In Maulding v. Commonwealth, 172 Ky. 370, 189 S.W. 251, the defendant, after knocking the victim down with his fist, stamped him repeatedly in the head and face with the heel of his shoe. In Sanders v. Commonwealth, 265 Ky. 671, 97 S.W.2d 584, where the defendant struck the victim with his first in a casual quarrel, the Commonwealth's evidence was to the effect that the defendant had used brass knucks, whereas the defendant maintained he had used only his bare fist; the court said that if the evidence for the defendant were to be believed 'it presents only a case of involuntary manslaughter.' Similarly, in Cook v. Commonwealth, 285 Ky. 749, 149 S.W.2d 507, where the Commonwealth's proof was that the defendant had struck the victim with a blackjack and the defendant's proof was that he merely used his fist, the court said that if the defendant's evidence were to be believed he was guilty only of involuntary manslaughter. In Boggs v. Commonwealth, 285 Ky. 558, 148 S.W.2d 703, there was testimony that the defendant had admitted an express intent to kill the victim. In Rush v. Commonwealth, 296 Ky. 724, 178 S.W.2d 408, the evidence showed 'a most brutal killing,' and the nature of the wounds indicated that they must have been inflicted by the use of metal knucks or a club.

A few of our cases seem to have taken the view that the mere striking of a fatal blow with the fist will support an inference of an intent to kill. In Smith v. Commonwealth, 228 Ky. 710, 15 S.W.2d 458, the giving of instructions on both murder and voluntary manslaughter was approved where the only indication of an intent to kill, apart from the striking of a single fist blow, was that the defendant was in a belligerent mood and had provoked a fight with the victim. In Kearns v. Commonwealth, 243 Ky. 745, 49 S.W.2d 1009, instructions on murder and voluntary manslaughter again were approved where the defendant had sworn at the victim and had invited him to fight, and where during the fight the defendant not only had struck several blows but had put the victim's head in an armhold. On the first appeal of the instant case this Court overruled the Smith and Kearns cases to the extent they held that malice could be inferred from a sudden, simple fistfight. White v. Commonwealth, Ky., 333 S.W.2d 521. It is our holding now that they should be, and are, overruled as authority for the proposition that intent to kill can be inferred from a sudden, simple fistfight.

In somewhat the same category as the Smith and Kearns cases are Bailey v. Commonwealth, 288 Ky. 613, 157 S.W.2d 100, Payne v. Commonwealth, 289 Ky. 590, 159 S.W.2d 430, and Sikes v. Commonwealth, 304 Ky. 429, 200 S.W.2d 956. The opinion in the Bailey case is somewhat ambiguous but it seems to approve the raising of an inference of intent to kill from the mere striking of a single blow with the fist. The same is true of the Payne case, although there was some evidence in that case that the defendant had kicked the victim after knocking him down. In the Sikes case the Court said, 'Ordinarily a blow with a fist does not imply an intent to kill, for that result is not probable.' Nevertheless the Court impliedly approved the giving of a voluntary manslaughter instruction where the evidence showed only that the defendant had struck the victim one time in the jaw with his fist, in the course of a sudden quarrel. To the extent that the Bailey, Payne and Sikes cases stand for the same proposition on which the Smith and Kearns cases have been overruled, they also are overruled.

We consider the question now of whether there is any probative evidence in the instant case, apart from the striking of the initial blow with the fist, to warrant an inference of an intent to kill.

Putting aside for the moment the testimony concerning the bruises on the victim's face, we find nothing in the circumstances of the case that would be indicative of an intent to kill. There is no evidence of any belligerence, animosity or threats by the defendant before the fight began. There is no suggestion that Jett was any more drunk than the defendant, or was helpless or taken by surprise. The defendant did...