Wilkey v. Com.
| Decision Date | 27 February 1970 |
| Citation | 452 S.W.2d 420 |
| Parties | Ernest Red WILKEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Richard R. Bryan, R. L. Myre, Sr., James Owens, Paducah, for appellant.
John B. Breckinridge, Atty. Gen., James H. Barr, Asst. Atty. Gen., Frankfort, for appellee.
Appellant Ernest 'Red' Wilkey was indicted for the wilful murder of Thomas Marshall Turner, found guilty of voluntary manslaughter, and given the maximum penalty of twenty-one years in prison (KRS 435.020). He assigns a number of grounds on which he seeks a reversal of the judgment of conviction, which we shall not catalogue here but discuss later. Finding no merit in any of the grounds, we affirm the judgment.
No useful purpose would be served by a detailed statement of all the facts, circumstances, and evidence surrounding the shooting of Turner by the appellant. Suffice it to say that on February 18, 1968, in Carter's Restaurant on 6th Street in the City of Paducah, while the appellant and friends were seated at a table, the deceased, Thomas Marshall Turner, along with his brother, Jackie Turner, and their friend, Henry Spears, came in the restaurant and were in the process of leaving, according to the evidence, when the deceased and appellant came face to face. The evidence is conflicting as to who started the argument and the fight that ensued between the appellant and the deceased, but this much can be stated as pretty well-established fact: The appellant was either knocked to the floor or fell to the floor; as he arose, he shot the deceased with a .22 caliber pistol; whereupon the appellant and deceased clutched in somewhat of a bear hug wrestle. Jackie Turner, the brother of the deceased, was nearby during this time, and on seeing blood running from the mouth and neck of his wounded brother, Thomas Marshall Turner, he, Jackie Turner, shot the appellant in the back. Three other shots were fired into the body of the deceased Turner by the appellant. About all the witnesses testified that one shot was fired first, and after a brief pause, perhaps four or five seconds, a number of shots were fired, which were described by some of the witnesses as having a volley-sounding effect.
The two Turners and Spears entered Carter's Restaurant from a side entrance. Upon seeing the appellant, according to the evidence of Jackie Turner, the deceased gave his revolver to him (Jackie Turner) and stated that he didn't want it in his possession because 'it might be trouble.' The Turners and their friend did not leave through the side entrance as they had entered but were preparing to leave through the front door, which took them by the table where appellant was seated.
First appellant argues that the instruction given by the court on self-defense was not sufficient in that the appellant's right of self-defense against Jackie Turner was not properly presented to the jury. We find this argument without merit for the simple reason that instruction 4 given by the court adequately presented this question to the jury. Instruction 4 is quoted herewith:
'If you shall believe from the evidence that at the time the defendant shot William Marshall Turner, if he did so do, 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 William Marshall Turner and Jackie Turner or either of them, and that it was necessary, or was believed by the defendant in the exercise of a reasonable judgment to be necessary, to shoot the deceased in order to avert that danger, real or to the defendant apparent, then you will acquit the defendant upon the ground of self defense or apparent necessity.'
Appellant says that if the evidence is as consistent with innocence as with guilt his conviction cannot be sustained, which is good law, but as noted above the evidence as to who was the aggressor and whether the shooting and...
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Hannah v. Com., No. 2007-SC-000267-MR.
...Dillard v. Commonwealth, 995 S.W.2d 366, 371 (Ky. 1999) (citing Brown v. Commonwealth, 890 S.W.2d 286, 290 (Ky.1994), Wilkey v. Commonwealth, 452 S.W.2d 420, 422 (Ky. 1970)). Moreover, in this particular case, Appellant's motion to strike shifted into a reservation of cross-examination once......
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Dillard v. Com.
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Bell v. Com.
...merit because the trial court sustained his objection and that was all that it was asked to do by the appellant. Wilkey v . Commonwealth, Ky., 452 S.W.2d 420 (1970). Judgment All concur. ...