# Whorton v. Commonwealth

> Kentucky Supreme Court · July 25, 1978 · 570 S.W.2d 627

URL: https://www.frixlaw.com/law-library/cases/9768213

## Case

- **Full name:** Harold WHORTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee
- **Court:** Kentucky Supreme Court
- **Decided:** July 25, 1978
- **Citations:** 570 S.W.2d 627; 1978 Ky. LEXIS 391
- **Precedential status:** Published
- **Opinion:** Concurrence by Reed
- **Judges:** Palmore, Lukowsky, Reed, Clayton, Stephenson
- **Cited by:** 37 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled by Polk v. Commonwealth, 679 S.W.2d 231 (1984).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9768213

## Opinion text

REED, Justice,
concurring.
I join the majority opinion to the extent it holds that the only reversible errors presented were the trial judge’s refusal to comply with the submitted request of the appellant for an instruction on the “presumption” (more properly, assumption) of innocence, and his submission to the jury of the charge of wanton endangerment growing out of the firing of a shot into the ceiling despite appellant’s objection that the submission constituted an impermissible multiplicity. I do not, however, agree with some of the observations made in the majority opinion, although I do thoroughly agree with other statements made therein.
*636 When the trial judge refused to instruct on the “presumption” of innocence, he followed the settled law of this state. That law redounded to the benefit of criminal defendants in many instances where an evi-dentiary presumption favored the prosecution’s case. If the Kentucky system of jury instructions in criminal cases is now to become one where “presumptions” favorable to defendants must be given but there shall be no instructions on “presumptions” favorable to the prosecution, then the entire procedure is way out of balance and the interests of society to protect the innocent victims of crime and to punish and to prevent the repetition of dangerous and sometimes fatal criminal activity are critically denigrated.
I am in substantial agreement with most of what is said in my brother Lukowsky’s concurring opinion. I am persuaded, however, that the United States Supreme Court is not the only agency seeking to impose a gray blanket of national uniformity on the court systems of the several states. So-called national “standards,” “guidelines” and “goals” are poured forth without much, if any, consideration given to the experience, record and workability of individual state systems, more particularly those not represented on the frequently formed “conferences,” “committees,” “commissions,” “sections,” and “task forces,” which with boring frequency are usually composed of the same people who apparently nominate each other for inclusion in the proliferating projects. It taxes one’s credulity to conclude that these individuals possess expertise in so many diverse areas.
I do not share the asperity of the majority concerning the federal trial method. After all, it has delivered a good and acceptable product of justice in Great Britain for a long time and fourteen states of the Union are using it with results satisfactory to them. I disagree with my brother Lukow-sky that it is either necessary or desirable for a trial judge to comment on the credibility of witnesses or for us to swallow indiscriminately the complete Federal Code of Evidence to assure federal acceptance of our system’s results or to provide a fairer system than we have.
My present uneasiness about our jury instruction methods is that they are too complicated rather than too “sparse” or “truncated.” I would prefer letting a trial judge explain in concise layman’s language, in all places possible, what a jury’s function is and to relate it to the particular case on trial. I would recommend that this procedure be used by the judge at the commencement of trial and after final arguments have been completed. This procedure basically is nothing more than an adaptation and extension of the interrogatories to the jury provisions we already have in our procedural rules for civil cases.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9768213. Public record. Not legal advice.