Opinion op the Court by
Judge Clay
Reversing.
B. E. Hill appeals from a judgment convicting him of willful murder, and fixing his punishment at life imprisonment.
The facts are these: Appellant was chief of the fire department of the city of Hazard, and, when not so engaged, acted as. traffic policeman. On the occasion of the homicide he was acting as traffic officer at Walker-town, a suburb of the city of Hazard. At that point there were no sidewalks, and there was a large ■ amount of traffic on the street, particularly on Saturday evening. About dusk on Saturday evening, September 6, 1930, appellant, who was standing on the edge of the highway, saw a car approaching. The car was driven by Artie Engle. W. K. Brewer sat on her right. The rear seat was occupied by Cinda Brewer, mother of W. K. Brewer, and by her daughter, Fay Maggard and her granddaughter, Norma Lee Maggard, an infant of tender years. Appellant had boarded at the home of Cinda Brewer, knew her and the other occupants of the car, and was on friendly relations with all of them. As to what occurred when the car drew near to appellant there is but little contrariety in the evidence. According to the occupants of the car, who testified for the commonwealth, appellant stepped into the highway and waved for the car to stop. The car was traveling between 20 and 30 miles an hour. Artie Engle thought appellant was joking and drove on. Just as the car passed appellant he said, “Stop that car. ’ ’ He let his hand come back on his gun and fired at the car. The bullet passed through the car and entered the body of the infant, Norma Lee Maggard, who died a few minutes later. Appellant stated to the occupants of the car that he did not know them and that it was an accident. The car did not swerve toward appellant. According to appellant the car was speeding. He went into the center of the road and flagged the car, first with
one hand and then with both hands. The car cut over on the right-hand side of the road where he was standing, and he jumped over on the dirt off the pavement. He did this because he was afraid he was going to get run over. The car drove right over the spot where he was standing. As the car passed he “hollered” “Stop that car,” and jerked his pistol and fired from his hip. He fired to hit the tire so they would stop. He did not deliberately aim at the car, nor did he shoot at Kaiser Brewer or anybody else in the car. He did not jerk his pistol out and point it right at the ear, but the car was several feet away when he fired. After he fired the car stopped and he learned that the baby had been shot. He then assisted in looking after the baby. There was other evidence that the car was going from 30 to 35 miles an hour. The rate of speed prescribed by the traffic ordinance of the city of Hazard was 10 miles an hour in the closely built-up portion of the city, 15 miles per hour in the residential portion, and 20 miles an hour outside of the residence portion. For a violation of any of the provisions of the ordinance the fine was not less than $10 nor more than $16 for each offense.
The indictment charged, in substance, that appellant did unlawfully, willfully, maliciously, feloniously, and with malice aforethought, shoot at W. K. Brewer with intent to kill him, and did kill, slay, and murder Norma Lee Maggard, etc.
In addition to defining the terms “willfully,” “feloniously,” and “malice aforethought,” the court instructed on willful murder and voluntary manslaughter based on sudden affray or sudden heat and passion. Instruction No. 3 submitted the question of reasonable doubt on the whole case and as to the degree of the offense. Instruction No. 3a bore on the right of appellant to shoot into the car if the occupants forcibly resisted arrest. Instruction No. 3b is as follows:
“If you shall believe from the evidence in this case that at the time the defendant fired the shot which took the life of the deceased, the defendant fired the shot at the tire of the car and did not intend to injure or take the life of any one, then you ought to find the defendant not guilty, unless you shall believe from the evidence in this case beyond a reasonable doubt that at the time the defendant fired the shot he did it in a reckless manner and 'without lawful excuse and without regard for
human life, and shot and killed Norma Lee Haggard, then the defendant is guilty of wilful murder as charged in the indictment and you ought to so find, and fix his punishment as defined in these instructions.”
The evidence does not show that appellant fired at W. K. Brewer, and shot and killed Norma Lee Haggard. The most that can be said is that he intentionally fired into the car knowing that it was occupied by human beings. It has long been the law that if one voluntarily and recklessly fires into a crowd and Mils any person, he is guilty of murder though he had no intention to kill or injure any one. Golliher v. Commonwealth, 2 Duv. 163, 87 Am. Dec. 493; Brown v. Commonwealth, 17 S. W. 220, 13 Ky. Law Rep. 372. The reason for the rule is that such conduct establishes “general malignity and recklessness of the lives and personal safety of others, which proceed from a heart void of just sense of social duty, and fatally bent on mischief. And whenever the fatal act is committed deliberately or without adequate provocation,” the jury has a right to presume it was done with malice. The rule has been applied where one having reason to believe that it was occupied by persons intentionally discharged a firearm into a dwelling house and killed some one therein. Washington v. State, 60 Ala. 10, 31 Am. Rep. 28, 3 Am. Crim. Rep. 171; State v. Capps, 134 N. C. 622, 46 S. E. 730; Russell v. State, 38 Tex. Cr. R. 590, 44 S. W. 159. It has also been held that onfe who deliberately shoots into a railroad train, occupied by passengers, cannot avoid liability for the resulting homicide by disclaiming malice, but is guilty of murder. Banks v. State, 85 Tex. Cr. R. 165, 211 S. W. 217, 5 A. L. R. 600. As an automobile offers less protection than a railroad coach, there is every reason why the same rule should apply where one intentionally fires into an automobile, which he knows to be occupied by human beings, and kills some one therein.
Whether, in view of the absence of any evidence tending to show that appellant fired at W. K. Brewer and Mlled Norma Lee Haggard, there was a failure of proof authorizing a reversal, we need not inquire. As the judgment must be reversed on other grounds, the grand jury may return a ndw indictment conforming to the facts.
The latter part of instruction 3b is erroneous and prejudicial, in that the only alternative allowed the jury
in case they believed from the evidence beyond a reasonable doubt that defendant fired the shot in a reckless manner and without lawful excuse, and without regard for human life, was to find him guilty of murder.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion op the Court by
Judge Clay
Reversing.
B. E. Hill appeals from a judgment convicting him of willful murder, and fixing his punishment at life imprisonment.
The facts are these: Appellant was chief of the fire department of the city of Hazard, and, when not so engaged, acted as. traffic policeman. On the occasion of the homicide he was acting as traffic officer at Walker-town, a suburb of the city of Hazard. At that point there were no sidewalks, and there was a large ■ amount of traffic on the street, particularly on Saturday evening. About dusk on Saturday evening, September 6, 1930, appellant, who was standing on the edge of the highway, saw a car approaching. The car was driven by Artie Engle. W. K. Brewer sat on her right. The rear seat was occupied by Cinda Brewer, mother of W. K. Brewer, and by her daughter, Fay Maggard and her granddaughter, Norma Lee Maggard, an infant of tender years. Appellant had boarded at the home of Cinda Brewer, knew her and the other occupants of the car, and was on friendly relations with all of them. As to what occurred when the car drew near to appellant there is but little contrariety in the evidence. According to the occupants of the car, who testified for the commonwealth, appellant stepped into the highway and waved for the car to stop. The car was traveling between 20 and 30 miles an hour. Artie Engle thought appellant was joking and drove on. Just as the car passed appellant he said, “Stop that car. ’ ’ He let his hand come back on his gun and fired at the car. The bullet passed through the car and entered the body of the infant, Norma Lee Maggard, who died a few minutes later. Appellant stated to the occupants of the car that he did not know them and that it was an accident. The car did not swerve toward appellant. According to appellant the car was speeding. He went into the center of the road and flagged the car, first with
one hand and then with both hands. The car cut over on the right-hand side of the road where he was standing, and he jumped over on the dirt off the pavement. He did this because he was afraid he was going to get run over. The car drove right over the spot where he was standing. As the car passed he “hollered” “Stop that car,” and jerked his pistol and fired from his hip. He fired to hit the tire so they would stop. He did not deliberately aim at the car, nor did he shoot at Kaiser Brewer or anybody else in the car. He did not jerk his pistol out and point it right at the ear, but the car was several feet away when he fired. After he fired the car stopped and he learned that the baby had been shot. He then assisted in looking after the baby. There was other evidence that the car was going from 30 to 35 miles an hour. The rate of speed prescribed by the traffic ordinance of the city of Hazard was 10 miles an hour in the closely built-up portion of the city, 15 miles per hour in the residential portion, and 20 miles an hour outside of the residence portion. For a violation of any of the provisions of the ordinance the fine was not less than $10 nor more than $16 for each offense.
The indictment charged, in substance, that appellant did unlawfully, willfully, maliciously, feloniously, and with malice aforethought, shoot at W. K. Brewer with intent to kill him, and did kill, slay, and murder Norma Lee Maggard, etc.
In addition to defining the terms “willfully,” “feloniously,” and “malice aforethought,” the court instructed on willful murder and voluntary manslaughter based on sudden affray or sudden heat and passion. Instruction No. 3 submitted the question of reasonable doubt on the whole case and as to the degree of the offense. Instruction No. 3a bore on the right of appellant to shoot into the car if the occupants forcibly resisted arrest. Instruction No. 3b is as follows:
“If you shall believe from the evidence in this case that at the time the defendant fired the shot which took the life of the deceased, the defendant fired the shot at the tire of the car and did not intend to injure or take the life of any one, then you ought to find the defendant not guilty, unless you shall believe from the evidence in this case beyond a reasonable doubt that at the time the defendant fired the shot he did it in a reckless manner and 'without lawful excuse and without regard for
human life, and shot and killed Norma Lee Haggard, then the defendant is guilty of wilful murder as charged in the indictment and you ought to so find, and fix his punishment as defined in these instructions.”
The evidence does not show that appellant fired at W. K. Brewer, and shot and killed Norma Lee Haggard. The most that can be said is that he intentionally fired into the car knowing that it was occupied by human beings. It has long been the law that if one voluntarily and recklessly fires into a crowd and Mils any person, he is guilty of murder though he had no intention to kill or injure any one. Golliher v. Commonwealth, 2 Duv. 163, 87 Am. Dec. 493; Brown v. Commonwealth, 17 S. W. 220, 13 Ky. Law Rep. 372. The reason for the rule is that such conduct establishes “general malignity and recklessness of the lives and personal safety of others, which proceed from a heart void of just sense of social duty, and fatally bent on mischief. And whenever the fatal act is committed deliberately or without adequate provocation,” the jury has a right to presume it was done with malice. The rule has been applied where one having reason to believe that it was occupied by persons intentionally discharged a firearm into a dwelling house and killed some one therein. Washington v. State, 60 Ala. 10, 31 Am. Rep. 28, 3 Am. Crim. Rep. 171; State v. Capps, 134 N. C. 622, 46 S. E. 730; Russell v. State, 38 Tex. Cr. R. 590, 44 S. W. 159. It has also been held that onfe who deliberately shoots into a railroad train, occupied by passengers, cannot avoid liability for the resulting homicide by disclaiming malice, but is guilty of murder. Banks v. State, 85 Tex. Cr. R. 165, 211 S. W. 217, 5 A. L. R. 600. As an automobile offers less protection than a railroad coach, there is every reason why the same rule should apply where one intentionally fires into an automobile, which he knows to be occupied by human beings, and kills some one therein.
Whether, in view of the absence of any evidence tending to show that appellant fired at W. K. Brewer and Mlled Norma Lee Haggard, there was a failure of proof authorizing a reversal, we need not inquire. As the judgment must be reversed on other grounds, the grand jury may return a ndw indictment conforming to the facts.
The latter part of instruction 3b is erroneous and prejudicial, in that the only alternative allowed the jury
in case they believed from the evidence beyond a reasonable doubt that defendant fired the shot in a reckless manner and without lawful excuse, and without regard for human life, was to find him guilty of murder. An examination of the authorities will show that in cases like this where the officer shot at the casing for the purpose of stopping the car, and killed some one, we have ruled that he was entitled to an instruction on voluntary manslaughter based on the theory that the killing resulted from the wanton, reckless, or grossly careless use of a deadly weapon, and also an instruction on involuntary manslaughter based on the theory of the careless firing of the pistol, without any purpose of killing or injuring any one, and at a time when the officer believed, and had reasonable grounds to believe, that there was no danger in firing the pistol as he did. Smiley v. Commonwealth, 235 Ky. 735, 32 S. W. (2d) 51. In view of the situation presented by the evidence in this case we are of the opinion that the failure of the court to instruct on voluntary manslaughter and involuntary manslaughter, as above indicated, was prejudicial error calling for a reversal of the judgment.
Also in view of another trial we déem it necessary to add the following:
(1) There was no affray, sudden or otherwise, and the mere fact that the occupants of the car drove on and over the place where appellant was standing, without heeding his warning, was not such provocation as was reasonably calculated to excite his passion beyond the power of control. In the circumstances no instruction on voluntary manslaughter, based on sudden affray or sudden heat and passion, should have been given. Peal v. Commonwealth, 235 Ky. 356, 31 S. W. (2d) 602; Garrison v. Commonwealth, 236 Ky. 706, 33 S. W. (2d) 698.
(2) No instruction on forcible resistance to arrest should have been given. To constitute forcible resistance the force must be directed against the officer, and force employed merely in moving on or getting away is not sufficient. Anderson v. Commonwealth, 232 Ky. 159, 22 S. W. (2d) 599; Maggard v. Commonwealth, 173 Ky. 97, 190 S. W. 666.
(3) That part of instruction 3b authorizing appellant’s acquittal, if at the time he fired the shot he did not intend to injure or take the life of any one, should not have been given. Here the shooting was intentional, and in cases like this it is only where the shooting itself, and
not the result of the shot, is unintentional, that one maybe acquitted on the grohnd of accident. Lewis v. Commonwealth, 140 Ky. 652, 131 S. W.
517;
Clark v. Commonwealth, 227 Ky. 418, 13 S. W. (2d) 250.
On the return of the case the court, in addition to defining the words “wilful,” “wilfully,” “feloniously,” and “with malice aforethought,” in instruction No. 1, will add the following to that instruction:
“The words ‘grossly careless’ as used in these instructions mean that the act was done under such circumstances as to strike one at first blush as reckless or wanton.”
The court will then give the following instructions:
“(2) If you believe from the evidence in this case beyond a reasonable doubt that the defendant, B. E. Hill, in Perry county, Kentucky, and before the finding of the indictment herein* willfully, feloniously and with malice aforethought aimed and fired his pistol into the automobile referred to in the evidence at a time when he knew or had reason to believe that there were persons therein, and thereby shot and killed Norma Lee Maggard, you will find him guilty of murder and fix his punishment at death or confinement in the state penitentiary for life in your discretion according to the proof.
“(3) If you do not believe as set out in Instruction No. 2, but do believe from the evidence beyond a reasonable doubt that the automobile on the occasion referred to in the evidence was exceeding the Hazard speed limit of 20 miles an hour, and that the defendant, B. E. Hill, while acting as traffic policeman, shot at the casing for the purpose of stopping the car, and thereby shot and killed Norma Lee Maggard, in Perry county, Kentucky, and before the finding of the indictment herein, by the reckless or grossly careless handling or shooting of the pistol at a time when he knew or had reason to know, that the pistol was dangerous to life in the way he used it, although he did not intend to shoot said Norma Lee Maggard, you will find the defendant guilty of voluntary manslaughter and fix his punishment at confinement in the state penitentiary for a period of not less than two nor more than twenty-one years in your discretion, according to the proof.
“(4) If you do not believe as set out in Instruction No. 2 or Instruction No. 3, but do believe from the evidence beyond a reasonable doubt that, on the occasion referred to in the evidence, the automobile was exceeding the Hazard speed limit of 20 miles an hour, and that the defendant, while acting as traffic policeman, shot at the casing for the purpose of stopping the car, without any purpose of killing or injuring anyone in the car, and at a time when he had reasonable grounds to believe and did believe there was no danger in so firing the pistol, and that the killing of Norma Lee Maggard resulted from his careless firing of the pistol in Perry county, and within 12 months before the finding of the indictment herein, you will find the defendant guilty of involuntary manslaughter and fix his punishment at a fine in any sum in your discretion according to the proof, or confinement in the county jail for any length of time in your discretion according to the proof, or you may both so fine and imprison him in your discretion according to the proof.
“(5) The law presumes the defendant to be innocent until his guilt has been established by the evidence beyond a reasonable doubt, and if upon the whole case you have a reasonable doubt of the defendant’s having been proved guilty you will find him not guilty; or if you shall believe from the evidence beyond a reasonable doubt that the defendant has been proved guilty, but entertain a reasonable doubt as to whether his crime be that of wilful murder as defined in Instruction No. 2, or voluntary manslaughter, as defined in Instruction No. 3, you will find him guilty of voluntary manslaughter, the lesser offense, and fix his punishment as provided in Instruction No. 3; or if you believe from the evidence beyond a reasonable doubt that the defendant has been proved guilty, but entertain a reasonable doubt as to whether his crime be that of voluntary manslaughter, as defined in Instruction No. 3, or involuntary manslaughter, as defined in Instruction No. 4, you Iwill find him guilty of involuntary manslaughter, the lesser offense, and fix his punishment as provided in Instruction No. 4.”
The conclusion of the court makes it unnecessary to determine whether the court erred in refusing a continu
anee, or the attorney for the commonwealth indulged in improper argument.
We also refrain from determining whether the court abused a sound discretion in overruling the motion for a change of venue, as the state of public feeling may be altogether different at the time of another trial, and no change of venue may be desired.
Judgment reversed, and cause remanded for a new trial consistent with this opinion.
Whole court sitting.
Chief Justice Thomas and Judge Dietzman dissenting.