218 S.W.2d 393 | Ky. Ct. App. | 1949
Reversing.
Appellant, Elihu Collins, was jointly indicted along with Earl Stamper and Elisha Terry by the Lee County Grand Jury for the murder of Robert H. Cole. The indictment also charged Elihu Collins and Elisha Terry with aiding and abetting Earl Stamper in said murder. On their separate trials, appellant was found guilty of voluntary manslaughter and his punishment fixed at five years in the State Reformatory. From a judgment based on that verdict he prosecutes this appeal.
The only witness introduced by the defense was appellant, and his version of the affair as given by his testimony was that he and Earl Stamper went to the home of Bob Cole on the night in question for the purpose of getting some more whiskey; that Mrs. Cole filled his partly empty bottle from a glass jar for which Earl Stamper paid her $2; that Earl and Jack Cole put down a blanket and engaged in a game of craps from which a dispute arose and a fight started between Jack and Earl during which the shot was fired which killed Bob Cole; that this appellant, who had been sitting near the kitchen door, went into the kitchen when the fight started and tried to escape through the back kitchen door but, finding it locked, he returned to *574
the living room and escaped through the front door and went to his own home nearby. According to appellant's testimony, he did not participate in the free for all fight which followed the shooting of Bob Cole by Earl Stamper, but we think the evidence shows that he did get into this fight, and the fact that he received several cuts from the axe or hatchet being used in the fight indicates that he was engaged in this battle. However, none of the evidence, either for the Commonwealth or for the defense, connects him in any way with the shooting of Robert Cole which took place before the general fight started. According to all the evidence, appellant was sitting at the door leading from the living room into the kitchen and did not get into the fight until after the shooting took place. Whether that shooting arose out of a dispute between Jack Cole and Earl Stamper as the result of a crap game, as defense claims, or whether it was the result of an inexcusable and careless handling of the pistol by Earl Stamper in carrying out some drunken notion, there is nothing in the testimony to connect appellant with the death of Bob Cole. Earl Stamper has been convicted of that killing on a separate trial, but the testimony of the Commonwealth wholly fails to connect appellant with that death in any way or that he aided or abetted in the commission of the crime. Appellant came to the Cole home with Stamper, both of whom were unarmed, and was present when Stamper fired the fatal shot; but mere presence when a crime is committed is not evidence that one committed it or aided in its commission. Allen v. Commonwealth,
It follows that appellant's motion for a peremptory instruction should have been sustained. The judgment is therefore reversed for a new trial. Should the testimony be substantially the same as in this one, the court should direct a verdict for the defendant.
Instruction No. 2 given on the first trial was erroneous in that the jury was required to believe beyond a reasonable doubt the facts constituting appellant's right to defend himself or Earl Stamper. These facts are required only to be believed, not believed beyond a reasonable doubt. Lee v. Commonwealth,
Judgment reversed.