312 Ky. 741 | Ky. Ct. App. | 1950
Reversing.
Appellant, Maurice Fairchild, and John Acrey, Willie Crabtree, Lester Gregory and Ray Burgess were jointly indicted, charged with the murder of Woodrow Cooper. Separate trials were had. Appellant was found guilty of manslaughter and his punishment fixed at 21 years in prison. He appeals, assigning as errors: (1) The evidence is not sufficient to support the verdict; (2) the court failed to instruct upon the whole law of the case; and (3) a new trial should have been granted on the grounds of newly discovered evidence.
This is a companion case to Acrey v. Commonwealth of Kentucky, 312 Ky. 732, 229 S. W. 2d 748. After a severance was had the Commonwealth elected to try Acrey, but Acrey not being ready for trial the Commonwealth elected to try appellant. Appellant was triet first. 'The testimony for tne Commonwealth was substantially the same as that in the Acrey case. The testimony for the Commonwealth is summarized there ann is not repeated here.
The witnesses for the defense were appellant, Lester Gregory, John Acrey, and Ray Burgess. Willie Crabtree did not testify. In the case of Crabtree v. Commonwealth, 312 Ky. 768, 229 S. W. 2d 756, decided from the testimony of the other defendants that Crab-tree was drunk and had “passed out” at the time of the trouble resulting in Woodrow Cooper’s death.
Lester Gregory, 18, tells about the trouble when Acrey stopped the car. The trouble started at the back left side of the car. Woodrow hit Acrey; Acrey hit him back, knocked Woodrow down; he got up, made a “lick at John and fell on his face. It mashed his nose and face.” He says that Maurice Fairchild did not take any part whatever in that trouble; that he and Burgess did not take any part in it; that he and Burgess got Woodrow by the arm and tried to get him back in the car; that Acrey got in; Cooper got Acrey “by the neck and kind of jerked him out of the car.” During the difficulty there were marks and some blood on Woodrow Cooper’s face; Acrey had blood on the palm of his hand. As they drove away Woodrow was on his hands and knees. The car was not driven over him.
Ray Burgess said Woodrow told Acrey to stop; Acrey “stopped real quick and his head bumped the seat * * *. It made him mad.” He got out and John met him on the left side of the car.' John “hit him and knocked him down.” John got in the car, Woodrow opened the door, grabbed John around the neck; John got out “hit him and he fell beside the car. * * * John jumped in the car and drove off and left him.” Burgess “looked back through the back glass and he was going toward the outside shoulder of the road on his hands and knees.” John Acrey was the only one that had any trouble with him. Fairchild did not strike Cooper or do anything to him. Burgess says as they drove away he and Fairchild tried to persuade Acrey to go back and get Woodrow.
John Acrey says he was driving the car; that he and Woodrow “scuffed a little, * # * had a little fight.” He says that none of them pitched Woodrow out of the car or ran the car over him. Acrey says that Fairchild did not strike or do anything to Woodrow.
The Commonwealth maintains that Fairchild aided and abetted Acrey, but appellant and all the other witnesses state that Fairchild took no part- in the trouble.
We believe the trial court should have sustained appellant’s motion for a peremptory instruction. Upon another trial, if the testimony should be substantially the same as here, the court should direct a verdict for appellant. All other questions are reserved.
The judgment is reversed with directions for proceedings not inconsistent with this oinion.