313 Ky. 587 | Ky. Ct. App. | 1950
Affirming.
The appellant, Paris Penix, has been convicted of the crime of voluntary manslaughter and sentenced to serve a term of two years in the penitentiary. The indictment charged that while operating an automobile on the highway he did so in such a negligent, reckless, careless and wanton manner as to cause it to collide with an automobile occupied by Mrs. Dixie Gilland and to causé her death.
It is argued in appellant’s behalf that the court erred in four respects; (1) In overruling the demurrer to the indictment; (2) in failing to give the whole law of the case; (3) in refusing to permit the jury to visit the premises; and (4) in admitting incompetent evidencé offered by the Commonwealth.
The indictment charged two offenses; manslaughter, growing out óf the death of Mrs. Gilland, and assault and battery on Mr. Gilland. A demurrer was filed, and the Commonwealth’s Attorney elected to prosecute the appellant for the crime of manslaughter. Thereafter the court overruled the demurrer. Dismissal of the indictment as to the misdemeanor would have been the technically correct procedure, but when the Commonwealth elected to prosecute for only one of the offenses charged the failure to enter an order dismissing the charge as to the othér offense was not prejudicial error. Criminal Code of Practice, Section 168; Hudson v. Commonwealth, 214 Ky. 578, 283 S.W. 1034; Franklin v. Commonwealth, 195 Ky. 816, 243 S.W. 1013; Warrix v. Commonwealth, 195 Ky. 795, 243 S.W. 1025.
The Court instructed the jury that if they believed from the evidence that Harry Gilland drove his car to the left of the center of the road or drove it at an excessive rate of speed and thereby caused the accident in which Mrs. Gilland was killed they should find appellant not guilty. It is argued that this instruction was insufficient in that it failed to tell the jury that they should acquit the appellant if they believed that Harry Gilland, driver of the car in which his wife was riding, was negligent and his negligence contributed to the accident to such an extent that but for such negligence it would not have occurred. Contributory negligence is not a defense to a charge of negligent homicide though
Appellant’s argument that the court erred in refusing to permit the jury to view the premises where the collision occurred cannot be sustained. The evidence clearly described the road and the conditions existing at the time of the collision, and we can conceive of no assistance that a view of the premises where the alleged offense was committed would have afforded the jury. There was no conflict in the evidence as to where the collision occurred except as to whether it occurred on Gilland’s or appellant’s side of the road. Sending the jury to view the premises is á matter within the discretion of the trial court, and under the facts of this case there was no abuse of the court’s discretion. Criminal Code of Practice, Section 236; Mitchell v. Commonwealth, 282 Ky. 844, 140 S.W.2d 624; Wireman v. Commonwealth, 290 Ky. 704, 162 S.W.2d 557.
Appellant’s complaint of the evidence is directed to the testimony concerning beer found in his automobile. It is argued that Ike Owens, the first officer on the scene, failed to see the beer bottles and that the bottles seen later by other witnesses must have been planted by some one for the purpose of manufacturing evidence against appellant. Several witnesses testified that they saw the beer bottles in appellant’s car. Ellis Younce was at the home of Freeman Newsome, and he and Newsome were the first persons at the scene of the collision. Younce carried Mrs. G-illand’s body onto the Newsome porch, and he testified that he looked .in the Penix car and saw the bottles on the rear seat or in the rear part of the car. The evidence was competent.
This court has been reluctant to affirm judgments of conviction of felonies in negligent homicide cases where the element of intoxication was absent, Middle-
The judgment is affirmed.