Wills v. Com.

• Decision Date: 23 November 1973
• Parties: Rice WILLS, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 60

502 S.W.2d 60

Rice WILLS, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Nov. 23, 1973.

Roger B. Sledd, Murphy, Dunn & Sledd, Lexington, for appellant.

Ed Hancock, Atty. Gen., Kenneth A. Howe, Jr., Asst. Atty. Gen., Frankfort, for appellee.

CATINNA, Commissioner.

A jury found Rice Wills, Jr., guilty of assault and battery and fixed his punishment at a fine of $5,000 and imprisonment in the county jail for twelve months.

On October 2, 1971, Judith Stover met Rice Wills, Jr., at the apartment of Don Burger where a party was in progress. Later Judith took Wills to a liquor store to buy liquor for the party which had extended into the night. A number of the guests became intoxicated, including Judith and Wills. Later Judith decided to end the party by sending the guests home. Burger said it was his party and invited the guests to remain. Judith began to cry and went into the front bedroom. Burger followed and tried to calm her but and unsuccessful. Two other guests tried to calm her without success, and they finally gave up and left Judith alone in the room. Afterwards Wills passed Burger in the hallway stating that he was going to calm Judith.

Late that evening Ronnie Aubrey who occupied the front bedroom came in and attempted to enter his bedroom. The door was locked and when he 'jiggled' the door Wills answered and said he would be out in about ten minutes. After a short time Aubrey become impatient and forced the door open with a screwdriver. In the light which shone in across in room, he saw Wills sitting on the side of the bed with his head in his hands. Wills told him to go away and he would be out in a minute or two. Aubrey closed the door and walked away. He did not see Judith in the bedroom with Wills, nor did a friend who was standing there. Aubrey testified that there was a closet at the entrance to the room which obscured all of the bed except the edge where Wills was sitting. A short time later Wills left the party in somewhat of a hurry. Approximately five minutes after Wills' departure, Judith came staggering out of the front bedroom. She was completely nude and had been brutally and seriously beaten, having sustained multiple fractures to a temple, forehead, and cheeks and contusion of her left eye to such an extent that the eye was hanging down out of the socket. She was taken to the hospital where she remained for twenty-five days and had, up to the date of this trial, submitted to plastic surgery upon two occasions.

Judith did not recollect the events of the party subsequent to her return from the liquor store. She recalled becoming aware of lying on something hard and being cold and wet and a shadowy figure sitting on the side of the bed--a big man with broad shoulders, big arms, square hands, and with slick black hair. She said she attempted to escape from the bed by grasping a curtain and was hit with something hard. She recalled nothing more until she became conscious at the hospital.

Wills presents six questions for consideration.

First, he claims that the indictment was defective because it described 'fist' as a deadly weapon and, third, that the trial court, in its instructions, defined 'fist' as a deadly weapon. The indictment charged Wills as follows:

'On or about the second day of October 1971, in Fayette County, Kentucky, the above named defendant maliciously and willfully struck Judith Ann Stover with his fist and other objects unknown to the Grand Jury, deadly weapons, with the intent to kill her.'

The fact that the indictment included 'fist' and 'other objects' was sufficient to charge Wills with the offense denounced by KRS 435 .170.

In Charles v. Commonwealth, Ky., 321 S.W.2d 253 (1959), we held that even though an indictment under KRS 435.170(2) was insufficient to charge a felony it was sufficient to sustain a conviction on the charge of assault and battery.

The court instructed the jury upon (1) the charge of malicious striking and wounding with intent to kill, and (2) upon the lesser charge of assault and battery. The jury returned a verdict finding Wills guilty under Instruction No. 2. Wills objects to the giving of Instruction No. 1 because it was not proved that he used a deadly weapon, other than his fist which we have held not to be a deadly weapon. Charles v. Commonwealth, supra.

The trial court correctly instructed the jury upon assault and battery, as it is a lesser degree of the statutory offense as set out in KRS 435.170. Hall v. Commonwealth, Ky., 276 S.W.2d 441 (1955).

Even though Wills contends that the instruction striking and wounding was not authorized by the evidence and should not have been given, he was not convicted upon that charge, and it is difficult to see in what way the instruction may have prejudiced him.

In Hensley v. Commonwealth, Ky., 474 S.W.2d 888 (1971), we said:

'An instruction, even though unauthorized, upon the highest degree of an offense is not...