Brown v. Commonwealth

575 S.W.2d 451, 1978 Ky. LEXIS 449

• Court: Kentucky Supreme Court
• Decided: October 31, 1978
• Status: Published

Opinions

LUKOWSKY, Justice.

Brown was convicted of first-degree manslaughter in the Lincoln Circuit Court and sentenced to imprisonment for eighteen years. The trial judge instructed on murder (KRS 507.020(1)(a) and (b)), first-degree manslaughter (KRS 507.030(1)(a) and (b)), second-degree manslaughter (KRS 507.-040(1)) and reckless homicide (KRS 507.-050(1)), and refused to instruct on the defense of voluntary intoxication. The Court of Appeals affirmed on the ground that when instructions include offenses requiring intent and lesser degrees thereof which, do not require intent, the effect of voluntary intoxication is to negate the intent and thus reduce the offense to the lesser charge, and consequently, no instruction on intoxication is required. We granted discretionary review to examine this issue in the light of our new Penal Code. We now reverse and remand for a new trial.

KRS 501.080 provides, “Intoxication is a defense to a criminal charge only if such condition . . . (1) negatives the existence of an element of the offense . . . .” KRS 507.020(1)(a) makes intent to kill an element of murder, KRS 507.030(1)(a) and (b) makes either intent to cause serious physical injury or intent to kill an element of first-degree manslaughter. KRS 507.-020(1)(b) makes wantonness an element of murder. KRS 507.040(1) makes wantonness an element of second-degree manslaughter. KRS 507.050(1) makes recklessness an element of reckless homicide.

KRS 501.020(3) and (4) provides that voluntary intoxication does not negative either wantonness or recklessness. Consequently, voluntary intoxication constitutes a defense only to intentional and knowing offenses and does not provide a defense to unintentional offenses.

It is significant that the drafters of the Penal Code took the time, trouble and space to exclude voluntary intoxication as a defense to those offenses which may be committed only by wanton or reckless conduct. This indicates to us that the drafters intended that a voluntary intoxication instruction should be given in cases which involve intentional or knowing offenses and lesser included unintentional offenses. To reach any other conclusion would be to render their effort at exclusion superfluous. To put it another way, they were telling us to give the instruction but limit its applicability. Any of our post Penal Code cases which indicate a contrary conclusion do so only by way of obiter dictum and are not at variance with the result we reach here.

The instructions given by the trial judge were substantially in the form set forth in Section 2.01 of Palmore’s Kentucky Instructions to Juries to the numbering of which we shall make reference in our further discussion. The evidence of Brown’s state of intoxication adduced at trial was more than sufficient to require that the defense of voluntary intoxication be submitted to the jury.¹ If it is to be submitted and the mass of evidence on the subject is to have any comprehensible meaning to the jury it must be accompanied by an instruction in substantially the following form.

Although you might otherwise find the defendant guilty of murder under Instruction l(b)(i) or first degree manslaughter under Instruction 2(b), if at the time he killed X (if he did so) he was so drunk that he did not have the intention of committing a crime, you shall find him not guilty under those instructions.

The decision of the Court of Appeals and the judgment of the trial court are reversed and the cause is remanded to the Lincoln Circuit Court for a new trial.

All concur except CLAYTON, JONES and STERNBERG, JJ., who dissent.

1 . Brown was described by the arresting officer as “pretty drunk”, the Sheriff stated that he “was thick tongued, he repeated himself a right smart and was kinda wayward in his walk”, and several of Brown’s fellow, revelers testified that he was drunk and had been drinking constantly since the day prior to the shooting. The blood alcohol test given Brown three hours after the shooting indicated an alcohol level of 0.29%. He claimed that he suffered a total lack of recollection of the shooting. Mishler v. Commonwealth, Ky., 556 S.W.2d 676 (1977); Jewell v. Commonwealth, Ky., 549 S.W.2d 807 (1977).