Opinion
February 15, 1952.
Appeal from the Circuit Court, Jefferson County, Criminal Branch, First Division, Loraine Mix, J.
Sidney Baer, Louisville, for appellant.
A.E. Funk, Atty. Gen., for appellee.
Appellant was convicted of involuntary manslaughter as a result of the death of Marilyn Kleier. Miss Kleier died from injuries received by her when a truck driven by appellant left the street and knocked down a telephone pole which struck her. The sentence is one year in jail and a fine of $500. Appellant has filed motion for appeal.
The case was tried prior to this Court's decision in Marye v. Commonwealth, Ky., 240 S.W.2d 852, and the instruction on involuntary manslaughter is substantially the same as the one held to be erroneous in that case. The judgment must be reversed for the reason stated in the Marye case.
Appellant also contends he was entitled to a directed verdict, and in the alternative to an instruction on "sudden emergency." We do not agree. The substance of the testimony is that the accident occurred when appellant attempted to pass a vehicle in front of him. There is also evidence that he was intoxicated. There is sufficient evidence to submit to the jury on both voluntary and involuntary manslaughter, and the facts do not entitle him to an instruction on sudden emergency.
The motion for an appeal is sustained, and the judgment is reversed for proceedings consistent with this opinion.