124 Ky. 356 | Ky. Ct. App. | 1907
Opinion op the Court by
The appellee, James Hargis, was put upon liis separate trial under an indictment charging that: “ Jam.es Hargis, Elbert Hargis, Ed Callahan, Alexander Hargis, and Jesse Spicer committed the crime of murder, as follows, viz.: That said James Hargis, Elbert Hargis, Ed Callahan, Alexander Hargis, and Jesse Spicer, in connection with Curtis Jett -and William Britton, on the 24th day of January, 1905, in the County of Breathitt and State of Kentucky, did unlawfully, willfully, feloniously, and with malice aforethought, shoot and wound James C'ockrill with guns and pistols loaded with powder and leaden ball and other hard substances, from which shooting and wounding the said Cockrill died in Fayette county on the following day. (2) The said James Hargis, Elbert Hargis, Ed
The questions we are called on to consider, involve the refusal of the lower court to give certain instructions requested by the commonwealth, and relate to errors alleged to have been committed in the admission and rejection of evidence, the first and principal question being whether or not, the evidence authorizing it, the trial judge should have instructed the jury as requested by the commonwealth, that the defendant might be convicted of being an accessory before the fact. A sharp issue is here made between the State and the accused. In brief, the commonwealth insists that, under this indictment, he might be convicted of being the actual perpetrator of the act, or as aider and abettor actually or constructively present when it was committed, or as an accessory before the fact, and there being sufficient evidence to authorize the trial judge to give the jury instructions in behalf of the commonwealth submitting for their consideration these several views, he should have done so. For appellee it is urged that, in the same indictment the defendant cannot be charged with being the principal actor, as aider and abettor, and also as an accessory before the fact; that the charges are inconsistent, one accusation being that he was present, the other that he was absent, and therefore by the common law and statute they are separate offenses. The lower court accepted as correct the view of the defense, and refused to instruct the jury that they might convict the
The importance of this question to the commonwealth and the accused will be more fully appreciated when it is understood that there was some evidence conducing to show that Hargis, although not the actual perpetrator of the crime, yet procured, counseled, and advised the murder of Cockrill. Whether or not he was present as an aider and abettor is a disputed question between the cominonwealth and the accused — the evidence disclosing that he was in his store a short distance from the scene of the murder when it occurred. The commonwealth contends that he was there to render aid and assistance to the assassins, whilst the testimony for the defense tends to show that he was at the store attending to Ms business and knew nothing of their
It is, however, earnestly insisted by able counsel for the appellee that, although it is competent to charge in the indictment that the accused was the principal actor, and also1 an aider and abettor, as both imply the actual or constructive presence of the accused, he cannot further be charged as an accessory before the fact, because that necessarily imports his absence when the crime was committed, and consequently the accusations are radically different, and do not afford the defendant the accurate information of the accusation against him to which’he is entitled under the Constitution and laws. In support of this
. The errors in the admission and rejection of testimony may be briefly disposed- of. Anse White, introduced as a witness for the commonwealth, testified, in substance, that in March, 1902, Hargis gave him a pistol and told him to go to the courthouse and if any trouble came up there to kill Cockrill, Cox, and others. Soon afterwards, White returned the pistol to Hargis who told him to go to his home and stay there until he sent for him. White was then asked if, shortly after this conversation with Hargis, any person came to see him, and if so, to relate what the person said. The avowal made show’s that the witness, in answer to the question, would have testified, if permitted so to do, that, a short time after he left Hargis, Asbury Spicer came to his home and gave him a roll of money which he said had been sent him by Jim Hargis and Ed Callahan, and that they wanted him to come to Jackson- that night to help, in connection with Jesse Spicer and others, kill Dr. Cox or Jim Cockrill, or both, but that he returned the money to Spicer and refused to go or have anything to do with the matter, and a very short time after that Dr. ,Cox was killed. Previous to the offer to introduce this evidence, the commonwealth introduced witnesses who testified that they saw Asbury Spicer in the courthouse upstairs in the room from which Cockrill was shot. There is no evidence that Spicer ever had any conversation with Hargis or any of his codefendants in regard to the killing of Cockrill, or that he had ever been seen in the presence
*369 “Declarations of conspirators in regard to the common design are competent when a foundation has been laid by proof sufficient to establish prima facie the fact of conspiracy between the parties or propel' to be laid before the jury»as tending to establish such fact. The connection of the individuals in the unlawful enterprise being thus shown, every act and declaration of each member of the confederacy in pursuance of the original concerted plan and with reference to the common object is in contemplation of law, the act and declaration of them all, and is therefore, original evidence against each of them. It makes no difference at what time any one entered
Bowling, who was near Cockrill when he fell, and immediately went to him, was asked what Cockrill said. The avowal is made that he would testify if permitted that Cockrill said: “Oh, Bowling, they have killed me. Oh Lord, they have killed me at last.” That he then asked Cockrill who- killed him, and he said: “I don’t know, but the shots came from the courthouse window.” Cockrill was fatally wounded, and died on the following day. The evidence does not show whether or not Cockrill knew his condition, and therefore it is urged that the evidence was incompetent as a dying declaration, as these declarations are only admissible when made under a sense of impending dissolution. The question
Mose Feltner testified as to a conversation he had with the accused and other conspirators relating to the assassination of Miarcum and Cockrill previous to the death of either of theml The commonwealth also offered to prove by him that he had other conversations in which the killing of Marcum, but not Cockrill was discussed. What occurred in these latter conversations when the. name of Cockrill was not mentioned, the trial judge rejected, and properly so, The accused wias on trial for the killing of Cockrill, and statements made by him in respect to Cockrill were admissible, but conversations had, however wicked their intention or murderous their purpose, were not competent unless they related or referred in some way to Cockrill.- Especially is this true in view of the fact that Marcum was not killed until May, 1903, Cockrill being murdered in July, 1902-, This witness was inquired of at length concerning conversations with Hargis, and the execution of a
Complaint is also made that minor errors were committed in the admission of evidence, relating to the note and check given Feltner. The court permitted several witnesses to contradict the testimony of Hargis respecting this transaction. The evidence concerning this note and check was very material to the commonwealth, and hence damaging to the accused, and it was permissible for the commonwealth to contradict, if it could, the material statements of Hargis made with reference to this transaction, admonishing, of course, the jury of the purpose for which the evidence was admitted. .
This opinion will be certified to the lower court as the law of this case.