Harris v. Commonwealth , 1965 Ky. LEXIS 393 ( 1965 )

CULLEN, Commissioner.

Eugene Harris was sentenced to life imprisonment upon a verdict finding him guilty of murder in having inflicted upon Frank Johnson a stab wound that caused Johnson’s death. On this appeal from the judgment of conviction Harris asserts as his sole ground of error the failure of the trial court to give an instruction on voluntary manslaughter.

The only evidence as to the circumstances of the stabbing was the testimony of the witness John Embry. (Harris took the stand but in his testimony he attempted to establish an alibi.) Embry said that he came out of a restaurant in Lexington and saw Harris and another man standing at the curb about ten feet away; Harris struck the other man in the stomach, and the man put his hand against his stomach and walked away; Harris walked away in the other direction; no words were uttered either before or after the striking.

Although Embry was an eyewitness of the striking of the blow by Harris (which from other, circumstantial evidence could be concluded to have been a stabbing blow with a knife), the circumstances related by Embry were so unusual that it reasonably could be inferred that the striking had been preceded (before Embry’s arrival) at least by a verbal, and perhaps by a physical, exchange between Harris and Johnson.

We think this case falls within the rule that if a reasonable inference can be drawn from the evidence that the defendant in a homicide case is guilty of a lesser crime than murder, instructions should be given consistent therewith. See Stanley v. Commonwealth, Ky., 380 S.W.2d 71; Combs v. Commonwealth, Ky., 378 S.W.2d 626; Pennington v. Commonwealth, Ky., 344 S.W.2d 407; Lee v. Commonwealth, Ky., 329 S.W.2d 57; Cottrell v. Commonwealth, 271 Ky. 52, 111 S.W.2d 445. We do not believe that the evidence points so clearly to the crime of murder as to exclude a reasonable inference that a lesser crime was committed. See Stanley v. Commonwealth, Ky., 380 S.W.2d 71.

The judgment is reversed with directions to grant a new trial.