43 S.W.2d 549 | Ky. Ct. App. | 1931
Reversing.
Merkle Gambrel has appealed from a conviction carrying a sentence of life imprisonment for the murder of A.Y. Messer. This is a companion case to the appeals of Gord Gambrel [___ Ky. ___, 43 S.W.2d ___] and Tom Gambrel [___ Ky. ___, 43 S.W.2d ___] from the Knox circuit court.
The evidence in this case is the same as the evidence in the companion cases in all material aspects. On the trial of Gord Gambrel and Tom Gambrel, Sudie Messer, daughter of Gord Gambrel and widow of deceased, testified as to bad feeling between her father and her deceased husband. In this case, she testified that bad feeling also existed between her husband and her brothers. In the Tom Gambrel case, the court admonished the jury that they would not consider the evidence as to the conversation between Gord Gambrel and A.Y. Messer as against the accused, unless they believed from the evidence, beyond a reasonable doubt, that the accused and Gord Gambrel had entered into a conspiracy to do violence to A.Y. Messer. A similar admonition was not given in this case, but we note that no objection was made or exception taken to the conversation as detailed by the witness. There was, however, an objection made to the question as to what was said. We also note that the court was not requested to admonish the jury as to the effect to be given this evidence, if the jury did not believe that a conspiracy existed between defendants against A.Y. Messer.
The instructions are practically identical in the three cases, so, on the authority of the case of Gord Gambrel v. Commonwealth, 240 Ky. ___, 43 S.W.2d ___, this day decided by this court, the judgment of the lower court is reversed and the cause remanded for a new trial in conformity with this and the opinion in that case.
