overruled on other grounds by Kentucky v. Whorton, 441 U.S. 786, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979)
How later courts described this case
- overruled on other grounds by Kentucky v. Whorton, 441 U.S. 786, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979)
Written by the judges who cited it.
Later courts went against this
Overruled by Polk v. Commonwealth, 679 S.W.2d 231 (1984)
Ky. 570 S.W.2d 627 (1978) is in conflict with this opinion, it is hereby overruled.
The opinion
STEPHENSON, Justice,
dissenting.
I agree with the majority opinion to the extent of the holding that Whorton’s use of a pistol in firing a shot into the ceiling of Jerry’s Restaurant did not constitute a separate offense from the first-degree robbery charge. In all other respects I dissent.
The majority opinion oversimplifies my dissent. A careful reading of Taylor demonstrates to me that the failure to give a presumption of innocence instruction was held reversible error, primarily for the reason stated in Taylor that there was a risk that the jury would convict on the basis of the extraneous considerations mentioned in Taylor and “That risk was heightened because the trial essentially was a swearing contest between victim and accused.” Taylor went on to state “the particular need for such an instruction in this case.”
It is my view that with the equivocal language in Taylor the simple solution in this case is to apply the Chapman-Harrington test. Here we have three witnesses who identified Whorton in the robbery of the Doughnut Shop, two witnesses who identified Whorton in the robbery of the Burger Chef, ten witnesses who identified Whorton in the robbery of Jerry’s and the arresting officers on the charge of wanton endangerment. The only defense offered at all was the testimony of Whorton’s wife and sister who offered alibi testimony for the robbery of the Doughnut Shop. With Whorton not testifying we have a case for the prosecution that passes overwhelming evidence of guilt and reaches conclusive evidence of guilt. I do not believe that any thoughtful person would say that the failure to give a “presumption of innocence” instruction constituted unfair prejudice to Whorton. There can be no doubt at all that a conviction would have resulted if the instruction had been given; so, it follows that the error was harmless beyond a reasonable doubt, the basis of the Chapman-Harrington test.
Taylor does not pretend to hold that the constitutional right to a “presumption of innocence” instruction is so absolute that failure to give the instruction is reversible in all cases. It is my opinion that Taylor should be applied on a case by case basis depending on the circumstances in the particular case, and I am willing to handle the problem in this fashion rather than the rigid rule enunciated in the majority opinion which goes beyond the requirements of Taylor.