Case one of two
Hemphill v. Commonwealth
379 S.W.2d 223
May 15, 1964.

Defendant was convicted of voluntary manslaughter, and from the judgment of the Circuit Court, Knox County, Sampson B. Knuckles, J., the defendant appealed. The Court of Appeals, Davis, C., held, inter alia, that instruction classifying negligent homicide within crime of voluntary manslaughter punishable by imprisonment of two to 21 years was erroneous and confusing.

DAVIS, Commissioner.
Parker Hemphill was convicted of voluntary manslaughter by the Knox Circuit Court for the slaying of Jim Smith, a police officer of Barbourville. He appeals, seeking reversal of the conviction and consequent sentence of 21 years' imprisonment.

Appellant submits five separate grounds for reversal. It is our conclusion that the judgment must be reversed for error in the court's instructions to the jury, hence, we omit a list of other claimed errors.

The homicide occurred in the front yard of appellant's residence in Barbourville about 10 p. m. in July, 1962. The prosecution's evidence showed that Jim Smith, victim of the homicide, was then on duty as a police officer of Barbourville, and was in the company of his fellow officer Mays. Mays testified that as he passed the appellant's home he was hailed by appellant's 74-year-old mother from her wheelchair on the porch of the residence. Mays responded to Mrs. Hemphill's cries, and was asked by her to go into the residence to see what appellant had done toward 'tearing up the house.' At that time the victim Smith was not present. Mays entered the home and found appellant, who asked whether Mays had a warrant.

Mays responded that he had no warrant and was not there to arrest appellant. The witness said that he observed Nancy Hampton sweeping dishes, glass and food that had been broken on the floor. Meanwhile, Jim Smith had come into the house; appellant then latched the screen door to the porch and told his mother she would have to stay out. Then Mays unlatched the screen, walked onto the porch and was followed there by Smith. Mays swore that appellant 'got kindly mad about the screen being unlatched.' Nancy Hampton, a friend of appellant, was there to look after appellant's mother; there is contrariety in evidence whether she was to spend the night.

Mrs. Hemphill then said to Mays, 'Don't leave me. If you do, he will kill me.' (In her testimony, Mrs. Hemphill denied this.) The officers explained to Mrs. Hemphill that they could not arrest appellant without a warrant; Smith went next door to telephone the county judge pro tem with a view to obtaining a warrant for appellant's arrest. Mays said that appellant's mother warned that appellant had a shotgun, but Mays reassured her that appellant 'don't want to hurt nobody.' Just then Mays heard the back door slam and then two shotgun blasts in the back yard. Nancy Hampton came to the front door and inquired, 'You reckon he shot my car up?' At this Mays started around the right side of the house to the back yard, when Jim Smith came running out of the next door house and 'hollered' at Mays. Thereupon Mays, followed by Smith, went back across the Hemphill yard, at which time appellant came from the end of the porch with a shotgun. Mays testified that appellant held the gun on him and told Mays he would shoot out his guts. Mays pleaded with appellant, suggesting they were friends, and that appellant would get in trouble if he fulfilled his threat. Appellant agreed, 'cussing.'

Smith had come closer by then, and appellant told Mays to get in the police cruiser and leave, but then turned to Smith and said, 'You can't ride. You are going to have to walk.' Smith then turned toward appellant, but said nothing, at which appellant shot Smith in the groin. Appellant and Smith 'was right up against each other' then, said Mays. Smith's pistol was still in the holster when appellant shot him, then Smith drew the weapon and fired all of the six shots from it, and appellant was wounded in six places. Mays withdrew to a point behind the cruiser and fired his revolver four times, but it is not known whether any of his shots struck appellant.

Mays said that appellant shot at him twice, but neither shot hit him. Appellant and Smith grappled after Smith was shot, and they fell to the ground together. Smith died a few minutes later. Appellant's version of the tragedy is quite at variance with Mays' account. He testified that Smith ran toward him with his pistol drawn, while appellant had the shotgun in a nonoffensive position--that Smith's first shot struck the shotgun and appellant--that appellant was knocked to the ground, and that the shotgun was accidentally discharged as the result of this. Appellant denied that he had fired the shotgun twice, or at all, in the back yard. He made a vague reference indicating that he may have fired the shotgun while lying on the ground, and after the shotgun had been discharged accidentally, 'trying to get away from them.'

Some neighbors testified to facts indicating Smith was attempting to disarm appellant. Appellant's mother acknowledged that she had requested the officers to take the gun from appellant, not because she feared he would hurt anyone, but because she felt this would prevent appellant's going to his farm that night.

By Instruction 1, the trial court submitted the questions of willful murder and voluntary manslaughter, substantially as set out in � 868, Stanley's Instructions to Juries.

Instructions 2 and 3, as given by the trial court, also are patterned precisely from the second and third instructions set out in � 868, Stanley's Instructions to Juries.

The third instruction was the usual self-defense instruction. If the evidence on a new trial is substantially the same as in the instant trial, the self-defense instruction should be qualified to reflect that appellant may not avail himself of selfdefense if appellant brought on the difficulty. See � 897, Stanley's Instructions to Juries, and collected cases therein.

The fourth instruction given by the court is as follows:
'4. Although the jury may believe from the evidence beyond a reasonable doubt that the defendant shot and killed deceased with a gun, as in Instruction No. 1, described, if they believe from the evidence that he committed the act without previous malice, but shall believe from the evidence beyond a reasonable doubt that such shooting and killing was unlawfully and wilfully done by defendant in a sudden affray or in sudden heat and passion and with felonious intent to kill deceased, or shall believe from the evidence beyond a reasonable doubt that the shooting and killing of deceased, if done by defendant, was the direct and natural, though unintentional result of a reckless, wanton or grossly careless use or handling, if any of said gun by defendant in struggling with deceased for its possession, when he knew it was dangerous to life if so handled by him, they should find him guilty of voluntary manslaughter, and fix his punishment at confinement in the penitentiary for not less than two nor more than twenty-one years.'

It would appear that the genesis for the quoted instruction may have been � 883, Stanley's Instructions to Juries. It is observed, however, that the form as contained in � 883, op. cit., was published before the effective date of KRS 435.022. That statute became effective June 14, 1962, approximately one month before the instant homicide. By the terms of KRS 435.022 the crime of involuntary manslaughter is separated into two degrees; the first degree is a felony in which the range of punishment is confinement in the penitentiary from one to fifteen years. The second degree of the offense is a misdemeanor for which the punishment may be imprisonment in the county jail not longer than twelve months, or a fine not exceeding five thousand dollars, or both.

There is no statute in this jurisdiction defining the common law offense of voluntary manslaughter, but KRS 435.020 prescribes penalty of not less than two nor more than twenty-one years in the penitentiary for one convicted of the crime. It follows that the quoted Instruction No. 4 was erroneous in classifying negligent homicide within the crime of voluntary manslaughter punishable by imprisonment of 2 to 21 years.

Instruction No. 4 also was erroneous, and confusing, in that it resubmitted *227 the common law offense of voluntary manslaughter, which already had been fully covered in Instruction No. 1. Upon another trial of the case, if the evidence is substantially the same as on the first trial, the court will give the first three instructions as submitted on the first trial (subject to the qualification of the self-defense instruction), but Instruction No. 4 will be as follows: 4(a) If the jury believe from the evidence, beyond a reasonable doubt that in Knox County, Kentucky, and before the finding of the indictment herein, the defendant shot and killed James Smith with a shotgun, and that such shooting occurred by reason of any act or acts of the defendant creating such extreme risk of death or great bodily injury to the said James Smith as to manifest defendant's wanton indifference to the value of human life according to the standard of conduct of a reasonable man under the circumstances, then you should find the defendant guilty of involuntary manslaughter in the first degree, and fix his punishment at confinement in the penitentiary for not less than one nor more than fifteen years, in your discretion.

A wanton act, as used in this Instruction, is a wrongful act done on purpose in complete disregard of the rights of others, with conscious knowledge of and complete disregard for the probable consequences. 4(b) If the jury believe beyond a reasonable doubt that the defendant shot and killed James Smith, as described in Instruction 4(a), and that such shooting was the result of conduct of the defendant, reckless according to the standard of conduct of a reasonable man under the circumstances, then you should find the defendant guilty of involuntary manslaughter in the second degree, and fix his punishment at confinement in the county jail for a term not exceeding twelve months, or by fine not exceeding five thousand dollars, or by both such fine and imprisonment, in your discretion.

Reckless conduct, as used in this Instruction, is conduct done with indifference to the rights of others, and indifference whether wrong or injury will result from the act done.

Instruction No. 5, as given on the first trial, was more favorable to the defendant than warranted by law. If the evidence of another trial warrants any instruction on accidental shooting, it should follow the form set out as numbered paragraph 3, � 883, Stanley's Instructions to Juries.

Upon another trial the court will modify Instruction No. 6, as given on the first trial, so as to include involuntary manslaughter in the first and second degrees among the list of offenses for which a verdict may be returned.

We do not reach the question whether error was committed in obtaining jurors from an adjoining county. Upon another trial the court will be guided by KRS 29.262 and RCr 9.33, and make a fair effort in good faith to obtain an unbiased jury from Knox County citizens before obtaining veniremen from an adjoining county.

On the trial, the prosecuting attorney made reference in his opening statement to a telephone call received by Barbourville Chief of Police from appellant's brother at Ft. Knox. The Chief of Police also was permitted to testify concerning this call. It is proper for the Chief of Police to explain that he came to the scene of the killing as a result of a call from appellant's brother, but no reference should be made to any report to the officer incorporating any charge of appellant's misconduct or violation of law. Comments of the prosecuting attorney likewise shall be limited. Neither do we decide whether error was committed in the manner in which the jury's view of the crime scene was had. On another trial care will be taken that the accused is permitted to accompany the jury, under the trial judge's personal supervision, if a jury view is had. KRS 29.268.

There was no error in admission of evidence that about eight months prior to the shooting appellant (when arrested by Smith for another crime) had said that Smith 'had bought a one-way ticket.' This reference tends to disclose a feeling of animosity against the victim by the accused. It bears upon the attitude of appellant toward decedent and supports the prosecution's theory of malice; it affords basis for motive. Under these circumstances the evidence is proper, even though it collides with the general rule against admission of other crimes.

The statements of appellant's mother, some of which she admitted, were properly received in evidence. She was so closely enmeshed in the events that her utterances were clearly those of an actor in the event. Her statements were part of the res gestae; they are not to be considered mere outcries of a bystander. The fact that Mrs. Hemphill was not a party to the litigation does not preclude her status as an actor within the meaning of res gestae. By the same standard, the utterance of Nancy Hampton was properly admitted. She too was an actor. In short, as has been well said, these statements were the facts speaking through the person rather than the person talking about the facts.

The judgment is reversed for proceedings consistent with the opinion.

379 S.W.2d 223
Case two of two
Hemphill v. Commonwealth
405 S.W.2d 956.
Oct. 15, 1965.
ACTION: Judgment affirmed.

Defendant was convicted of voluntary manslaughter. The Circuit Court, Knox County, B. Robert Stivers, J., entered judgment, and the defendant appealed. The Court of Appeals, Palmore, J., held that the rights of defendant were not violated because Commonwealth disqualified prospective jurors through means of interrogating them on question of capital punishment.


Parker Hemphill appeals from a judgment of the Knox Circuit Court entered pursuant to a jury verdict finding him guilty of voluntary manslaughter and fixing his punishment at 21 years' imprisonment. KRS 435.020. This is the second appeal in the same case, a previous conviction having been reversed in Hemphill v. Commonwealth, Ky., 379 S.W.2d 223 (1964). The indictment was for wilful murder. All of the grounds advanced in support of the instant appeal concern the formation of the jury, which was summoned from Laurel County following an unsuccessful effort to empanel a jury from Knox County. Appellant alleges prejudicial errors in these respects:

1. The trial court did not make 'a fair effort in good faith * * * to obtain a jury free of bias' in Knox County before securing jurors from the adjoining county.

2. Prospective jurors from Knox County were excused upon admitting that they had formed opinions about the case, but without being asked whether they could lay such opinions aside.

3. The sheriff was directed to summon jurors from the panels that had served at the preceding terms of Laurel Circuit Court, whereas the trial judge, who was also judge of the Laurel Circuit Court and a resident of Laurel County, could have drawn the names from the jury drum.

4. Appellant's counsel was not permitted to question prospective jurors with respect to their willingness to inflict capital punishment.

This case had been tried twice before, the first effort having resulted in a mistrial and the second in a reversal. Unquestionably it had received wide publicity in Knox County. Nearly every prospective juror drawn from that county disclosed on voir dire that he had heard of the case, and most of them had formed or expressed opinions. During the early stages of preliminary interrogation conducted from the bench, several veniremen who acknowledged having opinions were asked whether they could disregard their opinions and render a fair and impartial trial, and almost uniformly they replied that they could not. The trial judge thereupon determined, over objection by defense counsel, that all persons having opinions on the case would be disqualified without being further asked whether they could nevertheless fairly and impartially try the case.

When the original panel of 24 was exhausted only six jurors had been tentatively seated. The court then drew from the wheel the names of 75 more persons, 44 of whom appeared and were available for service the next morning. 18 of these were disqualified before another six jurors could be tentatively seated. The Commonwealth's Attorney promptly asked whether any of the 12 had conscientious scruples against returning the death sentence, and 11 said they did. This question had not been asked and the Commonwealth had not sought the death penalty at either of the previous trials. Of the next 20 jurors called, all but four were excused by reason of relationship or preconceived opinion. Thus it appears that of 68 persons called from Knox County only five remained, four of whom had not yet been questioned on the death penalty. The panel being again exhausted, the trial court determined that it would not be practicable to obtain an impartial jury in Knox County and directed the sheriff to summon all of the jurors who had served at the last term of the Laurel Circuit Court. Defense counsel duly objected.

On the next day 47 prospective jurors from Laurel County reported for service, and after the first 12 were tentatively seated the Commonwealth's Attorney questioned them on voir dire but failed to ask whether they had any scruples against the death penalty. Defense counsel thereupon renewed his objections and moved that the panel be discharged and a renewed effort be made to obtain a jury from Knox County. However, the Commonwealth's Attorney claimed his omission to interrogate the prospective jurors on the death penalty had been an oversight, and he was permitted to resume the voir dire for that purpose. As a result, eight were disqualified immediately, and at the end of the day the panel was exhausted without the completion of a jury, whereupon the court directed the sheriff to summon more jurors from the list of those who had served at the next to last term of the Laurel Circuit Court.

Formation of the jury was completed on the following day. On this last day the Commonwealth abandoned asking the prospective jurors whether they had any scruples against giving the death penalty, and defense counsel sought to take up where the Commonwealth left off in this respect. Being of the opinion, however, that this could have no purpose except to defeat the formation of a jury at all, the court would not permit it.

Having thus summarized the formation of the jury, we return to the arguments.

The basis for the contention that the trial court did not make a fair effort to obtain a jury in Knox County is that the Commonwealth's Attorney injected the capital punishment question in bad faith and for the sole purpose of disqualifying Knox County jurors. On the record, the Commonwealth's Attorney controverted this charge by stating that it had been his intention to demand the death penalty until after the two regular panels from Knox County and one special panel from Laurel County were exhausted, at which time he decided to abandon the effort.

It goes without saying that the Commonwealth has a right to seek the death penalty in a murder case and to qualify a jury accordingly. How can a court be expected to determine whether a Commonwealth's Attorney is acting in good faith when he chooses that course? We think the answer is and must be that in the absence of an admission or clear proof to the contrary, when he acts within his rights as attorney for the Commonwealth the nature of his office commands a presumption of propriety. Hence we are unable to say in this case that there was any error or violation of the appellant's rights in the Commonwealth's disqualification of prospective jurors through the means of interrogating them on the question of capital punishment.

Before adoption of the Rules of Criminal Procedure it was provided by Criminal Code s 209 that an opinion based on rumor or newspaper statements would not disqualify a prospective juror if he swore that he could fairly and impartially render a verdict in accordance with the law and evidence. That section and the other provisions of the Criminal Code dealing with challenges for cause have been superseded by RCr 9.36, in which the grounds for a challenge for cause are no longer specified in particular but are embraced in one broad category, as follows: 'When there is reasonable ground to believe that a juror cannot render a fair and impartial verdict on the evidence, he shall be excused as disqualified to serve.'

We are not cited to any instance under the Criminal Code in which the propriety of disqualifying a prospective juror under circumstances similar to those in this case was challenged. The only possible prejudice that could result is, of course, the very thing that happened here, which is that the case eventually had to be tried by jurors from another county.[FN1] But the right of each side to an impartial jury is of far greater importance than the right of either to a trial in the precise county in which the crime is alleged to have taken place. Without deciding whether, under different circumstances, a trial court would abuse its discretion by dismissing prospective jurors on the basis of preconceived opinions without seeking to find out if they could lay such *959 opinions aside, we have no difficulty in concluding that in the circumstances of this case the trial court acted reasonably and within its proper discretion. There is no constitutional violation, however.

The contention that the Laurel County jurors were selected improperly rests on the premise that since the circuit judge who conducted the trial resided in Laurel County he was not absent from that county, even though he was holding court in Knox County. KRS 29.262, which is reprinted in the Rules of Criminal Procedure as RCr 9.33, provides that if the circuit judge of the adjoining county is present in that county at the time, the names of the jurors shall be drawn from the jury drum. Otherwise, the sheriff is to procure a list of the jurors who served at the previous regular term. The record does not reveal where the judge actually was when the sheriff of Knox County arrived at the Laurel County Court House. Presumably he expected to be in Knox County, and there was no legal requirement that he proceed to Laurel County in order to make himself available when the sheriff arrived. Certainly he had the right to remain where his court was in session and continue attending to whatever business came before that session. We do not say KRS 29.262 is not mandatory. There simply is not any proof in the record that it was violated.

Complaint is made also of the court's resort to Laurel County over three other adjoining counties for selection of the jurors. The point here is that Laurel and Knox Counties are in the same circuit and that by reason of having practiced cases in Laurel County the Commonwealth's Attorney was acquainted with acquainted with the jurors. That circumstance is not enough to justify interfering with the discretion of the trial court.

The last argument on this appeal is that appellant was prejudiced by not being allowed to inquire of the prospective jurors whether they could inflict the death penalty, in that the answers would have assisted in the exercise of peremptory challenges. This contention is answered by the verdict itself (21 years for voluntary manslaughter), which makes it obvious that the willingness or unwillingness of the jurors to give the death penalty actually did not figure in their deliberations. Thus the state of mind of the individual jurors on this particular question at the voir dire stage proved to be of no consequence, from which it follows that there could not have been any prejudice.

The judgment is affirmed.

Hemphill v. Commonwealth
405 S.W.2d 956

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