97 Ky. 494 | Ky. Ct. App. | 1895
DELIVERED THE OPINION OP THE, COURT.
October 30, 1894, an indictment was found and filed against Milt Gaskins, for the crime of murder, committed, according to recital in the indictment, as follows: “That said Milt Gaskins, on the 30th day of October, 1894, in the county aforesaid and before finding of this indictment, George Perkins, did unlawfully, wilfully, feloniously, and with malice aforethought, kill and murder Clay McGlear, by shooting him with a pistol loaded with powder and leaden ball and other hard substance, and that Milt Gaskins was present and did unlawfully, wilfully, and with malice aforethought, aid, assist, counsel and advise the said George Perkins to commit the murder aforesaid,” etc.
Under that indictment, Gaskins was, by the jury, found guilty of voluntary manslaughter, and his punishment fixed at confinement in the penitentiary for seven years.
The principal question to consider on this appeal is
In support of that plea was produced in evidence the following indictment, filed at October term, 1894: The grand jury of Jessamine county accuse Milt Gaskins, alias Milt Stigall, of the crime of murder, committed as follows: That said Milt Gaskins, alias Milt Stigall, on the 24th day of October, 1894, in the county aforesaid and before finding of this indictihent, did unlawfully, wilfully, feloniously and with malice aforethought, kill and' murder Clay McClear, by shooting him with a pistol loaded with powder and ball and other hard substance, etc.” There was also put in evidence, record of proceedings under that indictment, showing, in substance, that the parties, Commonwealth of Kentucky, plaintiff, and Milt Gaskins, alias Milt Stigall, defendant, appeared, a jury was duly impanelled, and swore a true verdict to render; the trial progressed and plaintiff having concluded its case, defendant moved the court for a peremptory instruction, which was sustained, and thereupon the jury'returned the following verdict: “We of the jury find the defendant not guilty as charged in the.indictment.”
As heretofore held by this court in case of Williams v. Commonwealth, 78 Ky., 93, “a person is in legal jeopardy when he is put upon trial before a court of competent jurisdiction, upon indictment or information which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance; and a jury is said to be thus charged when they have been impaneled and sworn.”
Sec. 178 Criminal Code provides: “The dismissal of the
Having been put upon his trial on charge of murder by a jury sworn to decide the issue between the Commonwealth and himself, defendant was entitled to a decision of that issue, which he could not have been arbitrarily deprived of by the court, nor was he, in fact, deprived of it; on the contrary, there was a decision by the jury, who, after hearing evidence and, under instruction of the court, rendered, in due form, a verdict of not guilty. And the only question to be determined is, whether the indictment under which he was so tried and acquitted was sufficient in form and substance to sustain a conviction if there had been a verdict to that effect.
Though there may be two or more persons charged with a murder, only one of wdiom actually did the deed, wdiile the others were present, aiding and abetting, there is, in legal contemplation, but one offense, of which all or any one of them can be convicted as principals. Benge v. Commonwealth, 92 Ky., 1. It thus results that although appellanr was proved, on the first trial, not to have himself done the
It seems to us the former trial and acquittal is a bar to the present prosecution, and appellant’s plea ought to have been sustained.
■ Wherefore, the judgment is reversed, and cause remanded with direction to discharge him from custody.'