*1 907 White, Stapleton, Clyde W. so, L. circumstance is consistent als.4 If that Jаckson appellant. Lexington, for purpose give right to оf with a her the sur- vivorship, there would because otherwise Matthеws, Gen., Atty. B. Robert John him estab- have been no reason at all for to Eckert, Attys. Browning, Joseph Asst. H. joint lish a account. Gen., Frankfort, аppellee. for judgment
The is affirmed.
CULLEN, Commissioner. life im- to was sentenced Eugene Harris finding him upon prisonment a verdict upon having in inflicted guilty оf murder caused stab that Frank a wound Johnson the appeаl from this death. On Johnson’s as asserts Harris judgment of conviction of thе failure ground of error the sole his Eugene HARRIS, Appellant, on vоlun- an instruction give trial court to v. tary manslaughter. Kentucky, Appеllee. COMMONWEALTH of circum only as to the The evidence Appeals Kentucky. Court of of testimony the stabbing was stances of the April 30, 1965. took Embry. (Harris of the witness John attempt testimony he in his the stand but Embry that alibi.) said ed to establish an Lexington in of a restaurant he camе out standing man and another saw Harris and Harris away; about ten fеet at the curb stomach, and man in the struck the other against his stоmach put his hand the man away away; Harris walked and walked dirеction; were ut no words in the other striking. the or after tered eithеr before eyewitness of Although Embry an was (which by Harris striking the of the blow other, could evidence from circumstantial stabbing blow a be tо have been concluded by knife), related a the circumstаnces with reasonably Embry so unusual that it were striking had that the could be inferred arrival) Embry’s at preceded (before been verbаl, by physi- perhaps a by least a and cal, Harris and exchаnge between John- son. the think this falls within rule
We case drawn inference can be that if a reasonable in that the defendant frоm the evidence crime guilty a case is of a lesser homicide account, question any- is a we are not called done so 4. she could have Whether by way, in the on to decide. of her interest virtue 908 *2 murder, wealth, given 628, 1054;
than Ky. instructions should be 285 148 S.W.2d consistent Com Stanley Commоnwealth, therewith. See v. Lee Ky., and v. 329 S.W.2d monwealth, 71; Ky., 380 S.W.2d Combs 57. Commonwealth, 626; Ky.,
v.
378 S.W.2d
I, therefore,
opin-
majority
think that the
Commonwealth,
Pennington
Ky.,
v.
344 S.
wrong
contrary
ion is
to certain
and is
407;
Commonwealth,
W.2d
Lee
Ky.,
v.
329
long-established rules of the
of homi-
law
57;
Commonwealth,
S.W.2d
Cottrell
271
v.
Digest,
Seе
Homi-
Kentucky
cide.
10A
52,
Ky.
sonable inference that a lesser crime was Commonwealth, Stanley committed. See v.
Ky.,
The is with direc- reversed
tions grant to a new trial.
MONTGOMERY, Judge (dissenting). SEAT, Appellant, Alta M.
I respеctfully disagree majori- with the v. ty opinion herein. in The rule alibi cases only is that an instruction on murder is LINES, INC., EASTERN GREYHOUND given. The reason is that Appellee. the accused’s is that he defense did not commit the mur- Appeals Kentucky. of Court of der because Certainly he wаs elsewhere. April 30, 1965. accused, here, the as does not сlaim that was homicide done “in sudden heat of
passion, upon provocation and ordinarily passion
calculated tó beyond excite con-
trol.” This any theory does not submit
of by defense held the accused. Commonwealth,
In Ky. Morris v. 306
349, 58, 208 it was held speсifically S.W.2d manslaughter
that no instruction should
be given in a murder case where the de-
fense an was alibi. See Barnes Com- v.
monwealth, 725, 318, Ky. 179 201 S.W.
and cases cited In an therein. alibi case
there is no room for the make accused to provocation
inconsistent claims of alibi and
or excuse. The two defenses are mutual-
ly If exclusive. the that accused claims present
he killing, was not at cer- the he
tainly cannot claim on a defense bаsed require presence that
factors his there.
Thus, possible there was for а no basis case, in and
manslaughter instruction this
it not given should be on a new trial. Commonwealth, 641, Ky.
Canada 281 136 v. 1061; Davenport
S.W.2d v. Common-