Opinion
October 4, 1963. Rehearing Denied November 15, 1963.
Appeal from the Circuit Court, Lyon County, Ira D. Smith, J.
Marion Parker Duke, pro se.
John B. Breckinridge, Atty. Gen., John B. Browning, Asst. Atty. Gen., for appellee.
The appellant, Marion Parker Duke, was convicted of voluntary manslaughter and sentenced to 21 years in the State Penitentiary. He petitioned the Lyon Circuit Court for a writ of habeas corpus which was dismissed on the ground that it did not state facts upon which relief could be granted. This appeal results.
Three separate indictments, each accusing appellant of willful murder, were returned by the Warren County grand jury. He was tried on the first indictment in 1954 and found guilty of voluntary manslaughter. He maintains that, since the indictment charged only the offense of willful murder, his conviction of voluntary manslaughter is not supported by the indictment and is not in conformity with the law. But where the accused is indicted for murder, it is proper to submit questions of guilt of lesser degrees of homicide committed under any circumstances or provocation of which there is evidence. Burris v. Commonwealth, 308 Ky. 145, 213 S.W.2d 1014.
In 1959, upon motion of the Commonwealth, the remaining two indictments against appellant were dismissed. It is his claim that the dismissal of those two indictments proves that he was not guilty of the charges made by the first indictment. Appellant was accused in each indictment of having killed a different person. The fact that the last two indictments were dismissed has no bearing on his conviction of voluntary manslaughter under the first indictment.
The two points discussed above are the only two raised on this appeal. However, since appellant is representing himself, we take notice that he states he was denied a transcript of the testimony taken at his trial in the Warren Circuit Court. He does not indicate that the transcript was requested for the purpose of taking an appeal, or for any other reason which would have indicated to the trial judge that such transcript was necessary.
The judgment of the Lyon Circuit Court dismissing the petition for habeas corpus is therefore affirmed.